Peng (Migration)
[2021] AATA 2374
•22 June 2021
Peng (Migration) [2021] AATA 2374 (22 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS: Mr Kaisheng Peng
Mr Huichun Peng
Miss Yanan Peng
Mrs Yanli Lu
Miss Yaqi PengCASE NUMBER: 2010437
HOME AFFAIRS REFERENCE(S): BCC2016/2634947
MEMBER:Nicola Findson
DATE:22 June 2021
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision not to grant the first and fourth named applicants Temporary Business Entry (Class UC) visas.
The Tribunal has no jurisdiction in respect of the second, third and fifth named applicants.
Statement made on 22 June 2021 at 7:47pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – approved nomination – closure of the subclass 457 program – standard business sponsor – sponsor deregistered – Department issued no decision record on nomination – financial hardship – applicant not employed for four years – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5, 65, 140, 338, 359
Migration Regulations 1994, rr 1.03, 2.58; Schedule 2, cls 457.223, 457.321CASES
Ahmad v MIBP [2015] FCAFC 182
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision of a delegate of the Minister for Immigration and Border Protection to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 9 August 2016.
At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). One of the criteria to be satisfied at the time of decision is cl 457.223 which requires the visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl 457.223(4) which is set out in the attachment to this decision. In the present case, specific claims have been made against cl 457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other alternative streams in cl 457.223.
The delegate refused to grant the visas on 24 August 2017 on the basis that cl 457.223(4)(a) was not met, because the first name applicant (the applicant) was not the subject of an approved nomination.
On 28 November 2018, this Tribunal made a finding that it did not have jurisdiction to review the decision to refuse the applicants Temporary Business Entry (Class UC) visas. On 14 May 2020, the Federal Circuit Court of Australia quashed that decision and issued a writ of Mandamus requiring the Tribunal to determine the applicant’s review application according to law.
The applicant appeared before the Tribunal on 7 April 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.
The applicants were represented in relation to the review by their registered migration agent, Mr Nathan Wong.
The Tribunal notes that even though the second, third and fifth named visa applicants were included in the application for the visa, and would have been identified in the relevant nomination application, they were not in Australia at the time of the visa application. In the circumstances, it is the sponsor/nominator that has standing to apply for review of the decision in respect of those secondary applicants. No review application was made by the nominator in respect of those secondary applicants. As such, the Tribunal considers that it does not have jurisdiction in respect of the second, third and fifth named visa applicants.
For the following reasons, the Tribunal has concluded that the decision under review in respect of the first and fourth named applicants should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a).
Requirement for an approved nomination
Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
The applicant applied for the visa on the basis of a nomination by Auservices Pty Ltd. That nomination was not approved and Departmental records indicate that the nomination was administratively finalised following the Department’s refusal to approve Auservices Pty Ltd as a standard business sponsor.
On 3 March 2021, the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to Departmental records indicating that the most recent nomination made in relation to the applicant by Auservices Pty Ltd under s.140GB of the Act for the purposes of a 457 visa, was administratively finalised by the Department on 25 May 2017. The Tribunal explained that the information is relevant to the requirements in cl.457.223(4)(a), which requires the applicant to be the subject of a current approved nomination.
The Tribunal also informed the applicant that on 18 March 2018, the Subclass 457 visa was repealed and replaced with the Subclass 482 (Temporary Skills Shortage) visa. It noted that new nominations lodged from 18 March 2018 are for Subclass 482 visas or existing 457 visa holders and do not support an outstanding application for a Subclass 457 visa. The Tribunal explained that if it relied on the information before it, it may find that he does not meet the requirements in cl.457.223(4)(a).
On 22 March 2021, the applicant, via its registered migration agent, provided a submission to the Tribunal. It was submitted, among other things, that on 15 March 2021, the Tribunal (differently constituted) had found that it did not have jurisdiction to review the delegate’s decision not to approve Auservices Pty Ltd as a standard business sponsor, on the basis that Auservices Pty Ltd was deregistered on 4 July 2018. It was submitted that because the applicant’s review application was related to the review application made by Auservices Pty Ltd, the issue of jurisdiction must also arise in this case.
It was also submitted that the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) support outstanding Subclass 457 visas or bridging visas associated with a 457 visa application lodged on or before 17 April 2017. It was submitted by Mr Wong that if the Tribunal was to find it does not have jurisdiction in this case, the applicant’s application should be deemed as an invalid application and remitted to the Department in order for his clients to lodge new sponsorship/ nomination and visa applications for a Subclass 482 visa, as per the transactional arrangement. Mr Wong submitted, in the alternative, that if the Tribunal is of the view that it has jurisdiction in this matter, it is incumbent on the Tribunal - as a matter of procedural fairness - to allow his clients to lodge new sponsor/nomination and visa applications in respect of a Subclass 482 visa, as per the transactional arrangement.
The Tribunal observes that a decision refusing to grant a Temporary Business Entry (Class UC) visa is reviewable if the applicant made the visa application while in the migration zone and either the applicant is sponsored by an ‘approved sponsor’ at the time the application for review of the visa refusal is made, or an application for review of a decision not to approve the sponsorship or nomination application has been made but, at the time the review application is made, review of the sponsorship or nomination application decision is pending.
For an applicant who claims to be nominated by a standard business sponsor, a nomination of an occupation in relation to the applicant must have been approved under s.140GB of the Act and the nomination made by a person who was a ‘standard business sponsor’ at the time the nomination was approved: cl.457.223(4)(a) of Schedule 2 to the Regulations. A ‘standard business sponsor’ is a person who is an ‘approved sponsor’; and is approved as a sponsor in relation to the standard business sponsor class by the Minister, under s.140E(1) of the Act: ss.5 and 140E of the Act and rr.1.03 and 2.58 of the Regulations. It is therefore a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor and s.338(2)(d) applies: Ahmad v MIBP [2015] FCAFC 182 (Katzmann, Robertson and Griffiths JJ, 16 December 2015) (Ahmad) at [95] – [96].
Therefore, such a decision is reviewable where, at the time the review application is made, either:
·the applicant is identified in a nomination under s.140GB of the Act by an approved sponsor. This includes a nomination application that has not yet been determined, or an approved nomination, but does not include a nomination that has been refused with no review pending of that refusal, or a nomination that has ceased (s.338(2)(d)(i)); or
·there is a pending application for review of a decision not to approve the sponsor under s.140E, or a pending review of a decision not to approve the nomination under s.140GB (s.338(2)(d)(ii)).
Tribunal records indicate that at the time the applicants lodged an application for review of the delegate’s decision to refuse them Subclass 457 visas (on 12 September 2017), there was also a pending review of a decision not to approve Auservices Pty Ltd as a standard business sponsor under s.140E (lodged on 12 June 2017). In addition, on 14 May 2020, the Federal Circuit Court concluded that the Tribunal’s no jurisdiction decision of 20 September 2018 in the matter of Auservices Pty Ltd was affected by jurisdictional error and issued both a writ of certiorari quashing the Tribunal’s decision as well as a writ of Mandamus directing the Tribunal to determine the review application made by Auservices Pty Ltd according to law. Further, as set out earlier in this decision record, on 14 May 2020 the Federal Circuit Court issued a writ of certiorari quashing the Tribunal’s no jurisdiction decision of 28 November 2018, and further, issued a writ of Mandamus directing the Tribunal to determine the applicant’s review application according to law. It is in these circumstances that the Tribunal is of the view that it does have jurisdiction to determine this review application.
The Tribunal is not persuaded by Mr Wong’s submission that the Tribunal does not have jurisdiction in this case because it is related to the review application made by Auservices Pty Ltd, in which a differently constituted Tribunal on 15 March 2021 found in that matter that it did not have jurisdiction. In the case of Auservices Pty Ltd, as submitted by Mr Wong, the Tribunal found it did not have jurisdiction on the basis that the company had ceased to exist as a legal entity, and consequently, had no standing to apply for, or continue with, an application for review. Although related, these two review applications are entirely separate matters and each must satisfy different review (as well as visa) application requirements under the Act and Regulations. Mr Wong’s submission in this regard is rejected by the Tribunal.
As the Tribunal was unable to make a favourable decision on the material before it, it invited the applicants to appear at a hearing to give evidence and present arguments.
On 2 April 2021, in a pre-hearing submission to the Tribunal, Mr Wong submits that while it was legally right for the Department to have administratively finalised the nomination application when the sponsor application was refused, it was legally wrong for the Department not to have issued a decision record when they did so. Mr Wong submits, as the Tribunal understands it, that the applicant has a legitimate expectation that the Tribunal, as a public authority, will have regard to the fact that no decision record was issued when the nomination application was administratively finalised, and “treat the applicant’s case fairly”. Mr Wong goes on to submit that a failure by the Tribunal to properly consider that no decision record was issued will result in an unfair outcome which would be detrimental to the applicant.
It is also submitted by Mr Wong that because it appears the Tribunal has now determined that it does have jurisdiction to review the application, that this casts doubt on the basis on which the Tribunal previously determined that it did not have jurisdiction to review the applicant’s application. Mr Wong finally made the submission that the applicant would suffer some financial hardship if he was ordered to return to China.
The submission was accompanied by a statement of the applicant, which set out that he had come to Australia as the holder of a Subclass 457 visa and that a subsequent visa application (the subject of this review) was lodged before his visa expired, to enable him to continue working for his sponsor, Auservices Pty Ltd. The applicant stated that he has complied with Australian immigration laws while he has been in Australia, and that he was unaware that the sponsoring company had been deregistered while he was awaiting the outcome of the appeal to the Federal Circuit Court. He stated that the Director of the sponsoring company had put him in this “awful situation”, and that if he were to return to China it would have a negative impact on both himself and his family.
At the hearing, the Tribunal explained that, unlike Mr Wong, it was of the view that it did have jurisdiction to consider the applicants application for review, which view had been reinforced by the Federal Circuit Court remitting the matter to the Tribunal for reconsideration according to law. It also discussed with the applicant the requirements of cl.457.223(4)(a) and the circumstances in his case. The Tribunal explained that if it found the applicant was not the subject of an approved nomination it would have to affirm the delegate’s decision. The applicant indicated that he understood the requirements for the visa.
The applicant confirmed to the Tribunal that he had come to Australia as the holder of a Subclass 457 visa. He said he had not worked for his sponsor (Auservices Pty Ltd), or at all, since 2017. He repeated aspects of his written statement, including that he did not know Auservices Pty Ltd had closed its business in 2018.
Mr Wong repeated aspects of his pre-hearing submissions concerning the Tribunal’s jurisdiction during the hearing. He clarified his submission that his client had a reasonable expectation that the Tribunal would right the wrong of the Department.
The Tribunal has had regard to the submission made on the applicants’ behalf that it was legally wrong for the Department not to have issued a decision record when the nomination application was administratively finalised, and that the applicant has a legitimate expectation that the Tribunal, as a public authority, will “right that wrong” and “treat the applicant’s case fairly”. The Tribunal observes that its role, in conducting a merits review, is to come to the correct or preferable decision on the basis of the available information before it, and in accordance with the legislation and regulations. The Tribunal must make the decision afresh and it is not bound by the delegate’s findings or the Department’s process. The Tribunal notes, as discussed with the applicant, that it has no discretion within the Act or Regulations to waive the requirements of cl.457.223(4)(a).
Conclusion
For the applicant to succeed in this review, he is required to demonstrate that he is the subject of an approved nomination made under s.140GB of the Act for the purposes of a Subclass 457 visa. The evidence before the Tribunal indicates that the applicant is not the subject of such a nomination. Further, given the legislative changes which came into effect on 18 March 2018, it appears that the applicant has no prospect of becoming the subject of an approved nomination that is capable of supporting his application for a Subclass 457 visa.
On the evidence before it, the Tribunal finds that there is no relevant approved nomination of an occupation in respect of the applicant. For these reasons the requirements of cl.457.223(4)(a) are not met. And, it follows, that the decision under review must be affirmed.
There is no evidence before the Tribunal to indicate that the fourth-named applicant meets the primary criteria for the grant of the visa. She is not a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. She therefore does not meet the requirements in cl.457.321. For these reasons the Tribunal must also affirm the decision in respect of the fourth-named applicant.
For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.
DECISION
The Tribunal affirms the decision not to grant the first and fourth named applicants Temporary Business Entry (Class UC) visas.
The Tribunal has no jurisdiction in respect of the second, third and fifth named applicants.
Nicola Findson
MemberATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
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Standard business sponsorship
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(4)The applicant meets the requirements of this subclause if:
(a)each of the following applies:
(i) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act;
(ii) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved;
(iii) the approval of the nomination has not ceased as provided for in regulation 2.75; and
(aa)the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) or (aa) that is in effect; and
(ba)either:
(i) the nominated occupation is specified by the Minister in an instrument in writing for this subparagraph; or
(ii) each of the following applies:
(A)the applicant is employed to work in the nominated occupation;
(B)if the person who made the approved nomination met paragraph 2.59(d) or (e), or paragraph 2.68(e) or (f), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business or in a business of an associated entity of the person;
(C)if the person who made the approved nomination met paragraph 2.59(h), or paragraph 2.68(i), in the person’s most recent approval as a standard business sponsor, the applicant is employed to work in a position in the person’s business; and
(d)the Minister is satisfied that:
(i) the applicant’s intention to perform the occupation is genuine; and
(ii) the position associated with the nominated occupation is genuine; and
(da)the applicant has the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation; and
(e)if the Minister requires the applicant to demonstrate that he or she has the skills that are necessary to perform the occupation — the applicant demonstrates that he or she has those skills in the manner specified by the Minister; and
(eb)if:
(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant;
the applicant:
(iv) has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph; and
(v) achieved within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister in the instrument; and
(ec)if the Minister requires the applicant to demonstrate his or her English language proficiency — the applicant demonstrates his or her English language proficiency in the manner specified by the Minister; and
(f)either:
(i) there is no adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person; or
(ii) it is reasonable to disregard any adverse information known to Immigration about the person who made the approved nomination mentioned in paragraph (a) or a person associated with that person.
…
(6)This subclause applies to an applicant if:
(a)the base rate of pay for the applicant, under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph; and
(b)the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.
…
(11)In subclause (4):
exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Judicial Review
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