POUDEL (Migration)

[2019] AATA 4011

POUDEL (Migration) [2019] AATA 4011 (15 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr SUNIL POUDEL

CASE NUMBER:  1616822

DIBP REFERENCE(S):  BCC2016/1812504

MEMBER:Mr S Norman

DATE:15 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 15 July 2019 at 4:30pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – relevant skills – nomination expired – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The visa applicant applied for the visa on 23 May 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 (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; and based on the accepted evidence herein, the Tribunal is not satisfied the applicant would meet any of the alternate visa streams.

3. The delegate refused to grant the visa on 23 September 2016 on the basis that the applicant had not met cl.457.223(4)(da) – skills. The applicant was represented in relation to the review by his registered migration agent.

4. On 29 May 2019 the Tribunal sent the applicant a hearing invitation letter (dispatched by email to the authorised recipient), advising that it had considered all the material before it relating to the application but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 10 July 2019. In the Tribunal letter of 29 May 2019, the applicant was advised that if they did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on their case without further notice.  Two SMS (hearing reminder) texts were also sent to the applicant’s mobile phone shortly prior to the hearing.

5. The migration agent had earlier contacted the Tribunal to provide the applicant’s mobile phone number and advise that they had not been able to contact the applicant for some time (discussed below). That being said, no further material response to the Tribunal’s hearing invitation letter had been received at the time and date of this decision. Further, the applicant did not appear before the Tribunal on the day and at the time and place at which their hearing was scheduled.

6. The Tribunal notes that under s.362B(1) of the Act it has a discretion, which is confirmed by s.362B(2), to reschedule the applicant's appearance before it, or to delay its decision on the review in order to enable the appearance to be rescheduled. The Tribunal must exercise its power under s.362B 'reasonably' and, that reasonableness is informed by the factual circumstances in respect of the particular review and the particular applicant. The Tribunal notes that it is under no statutory obligation to seek to contact the applicant to enquire as to the reason for the non-attendance. In considering whether it would be appropriate for it to exercise this discretion in the applicant's favour, the Tribunal has also taken into account its legal obligations under the Act to pursue the objective of providing a mechanism of review that is fair, just, informal, economical and quick.

7. However, having regard to all of the circumstances outlined herein, and pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.  

10. As noted above, on 23 September 2016 the delegate refused to grant the visas on the basis that cl.457.223(4)(da) - skills – had not been met.

    Whether there exists an approved nomination

11. By s.359A letter dated 14 March 2019[1] (emailed to the applicant’s authorised recipient), the Tribunal advised the applicant that subject to their comments the following would be the reason or part of the reason, for affirming the decision under review. The particulars of the information were:

    ·     it is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under s.140GB of the Act

    ·     a review of your file and Department records suggest that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for Evamarie P/L in respect of you expired on 22 September 2017

    ·     the Migration Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018 commenced on 18 March 2018 and, amongst 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)) was also repealed and closed to new applications.

    [1] Tribunal – folio 17.

12. The applicant was then advised that this information is relevant to the review because it suggests that they are not the subject of an approved nomination and that a new application for approval cannot be made. The applicant was also advised that if the Tribunal relied on this information in making its decision, we may find that he is not the subject of an approved nomination. The applicant was then invited to comment in writing by 28 March 2019.

13. On 28 March 2019,[2] the agent contacted the Tribunal and advised they had been unable to contact the applicant ‘since last year’. A subsequent agent email dated 28 March 2019,[3] repeated this information, and advised that the agent had been unsuccessful though they had attempted to contact the applicant on multiple occasions. The agent also provided the Tribunal with the applicant’s mobile telephone number (and to which number the Tribunal had issued the aforementioned hearing reminder SMS texts).  

    [2] Tribunal – folio 20.

    [3] Tribunal – folio 21.

14. That being said, cl.6704(15)[4] stated:

    (15)  However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day if:

    (a)  before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and
    

    [4] Migration Legislation Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018.

    (b)  within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.

15. The Tribunal understands that it may be thought that based on a ‘plain reading’ of this provision, the visa applicant’s merits review was ‘saved’ by this transitional provision. However, the Tribunal understands that cl.6704(15) did not commence until 18 March 2018 and the  Tribunal did not understand it had a retrospective effect, prior to this date. For instance, there was nothing in the explanatory memorandum or clear language in the amending regulations to imply any retrospective effect for cl.6704(15) to apply to nominations that had already ceased before 18 March 2018.

16. The Tribunal understands that courts have declared that in the absence of some material statement to the contrary, legislation will be assumed not to have retrospective operation as all legislation impinges on existing rights and obligations.  In Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ stated:

    The general rule of the common law is that a statute changing the law ought not unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights of liabilities which the law had defined by reference to the past events.[5] 

    [5] See Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261 (18 February 1957), Dixon C.J., Williams, Fullagar, Kitto & Taylor JJ, per Dixon J at [7].

17. In Maxwell v Murphy the High Court had held that the enactment of amending legislation which extended from one year to six years the time within which a widow could bring an action for damages was held not to be intended to operate retrospectively, and her rights, having already been extinguished, were not revived. Another High Court case which endorsed the principle that the assumption is that legislation is not retrospective is Fisher v Hebburn Ltd (1960) 105 CLR 188, where the Court stated:

    There can be no doubt that the general rule is that an amending enactment – or for that matter, any enactment – is prima facie to be construed as having a prospective operation only. That is to say, it is prima facie to be construed as not attaching new legal consequences to facts, or events which occurred before its commencement.[6]

    [6] See Fisher v Hebburn Ltd [1960] HCA 80; (1960) 105 CLR 188 (16 November 1960), McTiernan, Fullagar, Kitto, Menzies & Windeyer JJ, per Fullagar J at [9].

18. After then considering that the effect of r.2.75 is to end the approval of a nomination, the legal effect of which is a concrete and definite end point (a changing of the status of approval), the Tribunal considers the 18 March 2018 amendments would not revive nominations not in force or existing at the time the amendments took effect and they do not have the effect of un-doing or nullifying pre-18 March 2018 cessations and reviving them.

19. In the present case, the change of legal status of the nomination had already occurred on 22 September 2017 when the nomination ceased by the operation of law under r.2.75(2)(b) in force at the time (well before the amendments on 18 March 2018) and the nominator’s rights had then been extinguished/ceased.  

20. That being said, and notwithstanding the aforementioned ‘plain reading’ of cl.6704(15), the Tribunal is satisfied the visa applicant in this case is not the subject of an approved nomination where that approved nomination had not ceased: cl.457.223(2)(b) and cl.457.223(4)(a).

21. For the reasons set out above, the Tribunal is not satisfied the applicant can meet the requirement in cl.457.223(4). Based on all the accepted evidence herein, the Tribunal now finds that the requirements for the Subclass 457 visa have not been met.

    DECISION

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Mr S Norman
    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.