Perera (Migration)

Perera (Migration) [2021] AATA 3741 (10 September 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Rajakaruna Mudiyanselage Ruwan Prasanna Perera
Mrs Kumudini Kawshalya Nelum Menike Thotapole Gedara
Master Rajakaruna Mudiyanselage Desandu Nethum Perera
Master Senuka Nehan Perera
CASE NUMBER:  1824718
HOME AFFAIRS REFERENCE(S):          BCC2017/1561444
MEMBER:Susan Trotter
DATE:10 September 2021
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 10 September 2021 at 5.49pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Contract Administrator – no approved nomination – closure of the Subclass 457 visa program – applicant’s business employs an Australian citizen – Convention on the Rights of the Child – referral for Ministerial Intervention – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 140GB, 351, 362
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cls 457.223, 457.321
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs 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 1 May 2017.
Under the Act and Regulations, prior to 18 March 2018,[1] there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme:
(a) Sponsorship – an employer applies for approval as a standard business sponsor;
(b) Nomination – the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and
(c) Visa application – the person nominated to work in the nominated occupation applies for the Subclass 457 visa.
[1] From which date new applications for Subclass 457 visas ceased.
The visa applicants applied for the visa on 1 May 2017 with the first-named applicant, as primary visa applicant (the applicant), seeking to work in the nominated occupation of Contract Administrator (ANZSCO 511111) for Ozanda Property Services Pty Ltd atf Herath Family Trust (the nominator).
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 10 August 2018 on the basis that cl 457.223(4)(a) was not met because the nominator did not have an approved nomination in relation to the applicant as required. As regards the secondary applicants, the delegate was consequentially not satisfied that they were each the member of a family unit of a person holding a Subclass 457 visa as required by cl.457.321.
The visa applicants lodged an application with the Tribunal on 24 August 2018 seeking review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.
On 12 May 2021, the Tribunal wrote to the applicants care of their advised representative and recipient, advising that the Tribunal had considered the material before it but was unable to make a favourable decision on the information before it and invited the applicants to participate in a hearing by telephone on 3 June 2021.
The applicants did not answer the telephone to participate in the scheduled hearing at the appointed time on the scheduled hearing date of 3 June 2021.
On 4 June 2021, as the applicants did not participate in the hearing, pursuant to s.362B of the Act, the Tribunal decided to dismiss the application without further consideration of that application or the information before the Tribunal.
On 17 June 2021, the Tribunal received a reinstatement application from the applicants’ representative on the basis that a COVID-19 city-wide lockdown had been announced in Melbourne where the representative’s office is located on the same date as the hearing, on 3 June 2021. The representative submitted that aggregate factors relating to this lockdown contributed to his inability to provide a request to the Tribunal to postpone the date of the hearing.
The Tribunal decided to reinstate the application pursuant to s.362B(1C)(a) of the Act as requested in the circumstances.
On 26 June 2021, the Tribunal again wrote to the applicants care of their advised representative and recipient, advising that the Tribunal had considered the material before it but was unable to make a favourable decision on the information and invited the applicants to participate in a hearing by video on 19 July 2021.
On 15 July 2021, the Tribunal received a request from the applicants’ representative to postpone the date of the hearing on the basis that a further lockdown had been announced for Melbourne on that date and the applicant required the representative to travel to the applicant’s home in Queensland to participate in the scheduled hearing by video on 19 July 2021.
On 16 July 2021, the Tribunal responded to the applicants advising that the postponement request had been refused but that the applicant or their representative could make submissions at the commencement of the hearing on 19 July 2021 should they still wish to seek an adjournment. The hearing proceeded on 19 July 2021 before the Tribunal and the request for an adjournment was not maintained. The review applicant appeared before the Tribunal by video to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by video. The Tribunal determined it was reasonable to hold the hearing by video, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
For the following reasons, the Tribunal has concluded that the decision under review 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) of Schedule 2 to the Regulations.
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 application in relation to the applicant made under s.140GB of the Act by the nominator.
The Tribunal discussed with the applicant that he provided a copy of the delegate’s decision to the Tribunal and that the decision included that at the time the Department considered the matter, the nominator did not have an approved nomination in relation to the visa application.
Additionally, the Tribunal put to the applicant[2], that, information before the Tribunal is that:
(a) On 21 June 2018, the nominator applied to the Tribunal for review of the decision of the Department to refuse to approve the nomination application.
(b) On 27 January 2021, the Tribunal, in case file 1818230, affirmed the Department’s decision to refuse the nominator’s nomination application in relation to the applicant.
(c) There has been a change in the Subclass 457 scheme and law and it is no longer possible to apply for a new nomination supporting a Subclass 457 visa since 18 March 2018.
[2] Pursuant to procedure set out in section 359AA of the Act
The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this information and found that there was no approved nomination that had not ceased, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant and, further consequently, to refuse to grant the visas to the secondary applicants. The Tribunal invited the applicant to comment on or respond to the information or to seek additional time to do so.
The applicant sought to respond to or comment on the information there and then at the hearing and told the Tribunal that
The applicant told the Tribunal that he came to Australia 2012 and studied a Bachelor of Information Technology with the hope of settling in Australia. His oldest son started schooling in 2014 and is now in grade 8. His youngest son was born in 2013 and is now in grade 2. However due to changes in the migration laws in 2017 he lost a pathway to apply for permanent residency. They have almost spent 10 years in Australia and both children have started their schooling here. Their oldest son only has four years to finish his school studies and it would be very hard for him and his family to go back to Sri Lanka and start again there. He understands that the pathway that he was expecting to get his permanent visa via has closed. He also lost his work rights when his visa was refused in 2017 so he started a cleaning business and now employs a couple of people.
As discussed with the applicant, without diminishing in any way the applicant’s circumstances, the only issue before the Tribunal is whether there is an approved nomination that has not ceased. There is no provision in the legislation to take into account discretionary matters in relation to this issue.
There is no evidence before the Tribunal that the applicant is the subject of a nomination of an occupation in relation to him which has been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i) of Schedule 2 to the Regulations, and given the abolition to the Subclass 457 visa scheme no new application for a nomination capable of supporting the applicant’s Subclass 457 visa application can now be made.
At the time of this decision, there is no evidence before the Tribunal of an approved nomination of an occupation under s.140GB relating to the applicant.
On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.
It is no longer possible to make a nomination applicant in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.
The Tribunal finds that there is no approved nomination by a standard business sponsor that has not ceased.
It follows that the requirements of cl.457.223(4)(a) are not met and cannot now be met.
Conclusion
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 applicant would be able to satisfy the specific criteria for those streams.
It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.
Secondary applicants
The Tribunal must also affirm the decision not to grant the secondary applicants a Subclass 457 visa as they are not each a member of the family unit of a person who holds a Subclass 457 visa as required by cl.457.321, and there is no evidence that they meet the primary visa criteria for this subclass in their own right.
Ministerial Intervention
Section 351 of the Act provides that, if the Minister thinks that it is in the public interest to do so, the Minister may substitute for a decision of the Tribunal another decision, being a decision that is more favourable to an applicant, whether or not the Tribunal had the power to make that other decision. In deciding whether to refer the matter to the Minister for consideration under s 351 the Tribunal has had regard to the President’s Direction on Conducting Migration and Refugee Reviews, especially the paragraphs concerning referrals for Ministerial Intervention and the Minister’s Guidelines on ministerial powers (s.351, s.417, and s.501J) available in the Procedures Advice Manual 3 (the Minister’s Guidelines).[3]
[3] >
Among other things, the Minister’s Guidelines state that the Minister may consider exercising his or her discretion in cases that exhibit one or more ‘unique or exceptional circumstances’. The Guidelines then identify factors that may be relevant, individually or cumulatively, in assessing whether a case involves unique or exceptional circumstances. Without limiting the scope of the consideration, the Tribunal considers the following unique and/or exceptional circumstances to be relevant in this case:
(a) compassionate circumstances regarding the age and/or health and/or psychological state of the person that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship to the person.
(b) exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
(c) circumstances in which the application of relevant legislation leads to unfair or unreasonable results in a particular case.
(d) circumstances that may bring Australia’s obligations under the Convention on the Rights of the Child into consideration, including the best interests of the child – which must be treated as a primary consideration, but can be balanced against other primary considerations.
(e) the level and nature of the person’s integration into the Australia community and the length of time they have been in Australia, both as a lawful and unlawful non-citizen.
The Tribunal has taken into account the applicant’s evidence and submissions provided on behalf of the applicants from which the following summary of submission, supported by documentation provided to the Tribunal, follows.
(a)The applicant first arrived from Sri Lanka in Australia in 2012 having studied a Bachelor of Information Technology with the hope of settling in Australia. At the time, he had a clear pathway to apply for permanent residency with his wife and eldest son. However, due to changes in the legislation in 2017 he has since lost his pathway to permanent residency.
(b)The primary applicant lodged two Subclass 457 visa applications in relation to his employment with his employer. The first application was withdrawn by his authorised representative at the time without his permission, consent or knowledge. When the withdrawal of the application was brought to the applicant’s attention he did not pursue a complaint against his former representative as he did not want to damage the representative’s reputation or business.
(c)The applicant submitted that he had experienced an unfair and unintended consequence relating to his visa status and applications. Following the withdrawal of the applicant’s first Subclass 457 visa application, the applicant decided to lodge a further Subclass 457 visa application supported by a further nomination application by his employer. However, in being granted bridging visas, the primary applicant and his wife, a secondary applicant were given condition 8101 ‘no work’. In the decision record for this refusal, the delegate cited that the nominated position was not genuine as the applicant needed to be continuously working but had lost his working rights to do so.
(d)The applicant had sought to remove the restriction on his working rights with the Department but was unsuccessful. As a result, the primary applicant could no longer work in his nominated position. The applicant told the Tribunal that his former employer, the nominator, has since employed another person to work in his former role and so there was a genuine need for the position.
(e)When the nomination and visa applications were refused in 2018, the legislation had changed so a further nomination and visa application for the nominated position were not possible. Further, the applicant had since turned 45 and became ineligible to reapply.
(f)The applicant has since started a cleaning business where he employs one Australian citizen/permanent resident and one temporary visa holder in order to meet his family’s living expenses. The applicant has no family or friends in Sri Lanka and his only brother is a permanent resident in Japan.
(g)The applicant’s wife has been studying a course in childcare and is halfway towards completion. She has completed the practical work experience component as part of her course, as allowed despite the ‘no work’ visa condition, and was offered a paid position that she could not accept due to the visa condition. She is passionate about her studies and would like to work in childcare but has otherwise been prevented from accepting positions offered to her.
(h)In particular, the applicant’s children, two of the secondary applicants, will be significantly affected should their removal from Australia be required and it is submitted is contrary to the Convention on the Rights of the Child as it would not be in their best interests.
(i)The children are integrated into the Australian community and have lived in Australia for the majority of their lives. The eldest child lived in Sri Lanka for his first four years and the youngest was born in Australia in 2013. The eldest child commenced his schooling in Australia in 2014 and is now in grade 8 and achieving exceptional grades as evidenced by documents before the Tribunal. Given that both children have undertaken the entirety of their schooling in Australia, they have developed a proficiency in English and would be significantly disadvantaged by returning to Sri Lanka to continue the remainder of their schooling.
(j)Both children have visited Sri Lanka once to attend the funeral of their grandfather in 2014. It is noted that in 18 months the youngest child will have lived in Australia for 10 years.
(k)The applicant also noted that the situation in Sri Lanka regarding the COVID-19 pandemic is particularly bad as the country is recording thousands of new cases each day.
Having had regard to the circumstances identified, the Tribunal has decided to refer the matter for consideration of Ministerial Intervention. There are a number of matters which in the Tribunal’s view warrant consideration by the Minister including, but not limited to:
(a)The obligations owed pursuant to the Convention on the Rights of the Child regarding the potential removal of the secondary applicants. In this regard, notably, the applicant’s children have completed all of their schooling in Australia and have lived the entirety (the youngest son) or almost the entirety (the oldest son) of their lives in Australia. In particular, the oldest son in particular, being in secondary school would likely experience significant difficulty in departing Australia at such an integral time in his schooling, particularly given the current, continuing and extended impact of the COVID-19 pandemic.
(b)The significant level of the applicant’s and his family’s integration into the Australia community, the extended time they have now been in Australia and the applicant’s, via his business, employment of an Australian citizen and the recognition by their local community, as evidenced by documents provided, of the applicant and his family’s contribution to the community.

Having taken all of these matters into account, the Tribunal has decided to refer this case to the Department for the Minister’s attention with a respectful recommendation that the Minister’s powers to intervene be exercised under s.351 of the Act.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Susan Trotter
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)
457.223
…
Standard business sponsorship
…
(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.

[2021] AATA 3741

10 September 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction