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

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.
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.
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.
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: POUDEL (Migration) [2019] AATA 4011
Case: [2019] AATA 4011
Decision Date: 15 July 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the case of Poudel, an applicant for a Temporary Business Entry (Class UC) visa, specifically a Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on whether the applicant met the requirements for this visa, with the delegate having initially refused the visa on the grounds that the applicant lacked the necessary skills, qualifications, and employment background for the nominated occupation.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant possessed the requisite skills, qualifications, and employment background as stipulated by clause 457.223(4)(da) of the Migration Regulations. Secondly, and crucially, the Tribunal had to ascertain whether there existed an approved nomination for the applicant, given that the previously approved nomination had expired. This second issue was raised by the Tribunal as a potential reason for affirming the delegate's decision, particularly in light of legislative changes that repealed and replaced the criteria for Subclass 457 visa nominations.

In its reasoning, the Tribunal noted that the applicant's agent had been unable to contact the applicant to obtain comments on the proposed reasons for affirming the decision, including the issue of the expired nomination. The Tribunal found that the applicant had not demonstrated that they met the requirements of clause 457.223(4), specifically concerning the existence of an approved nomination. The Tribunal concluded that the applicant was not the subject of an approved nomination because the nomination previously approved for Evamarie P/L had expired on 22 September 2017, and the subsequent legislative amendments meant a new application for approval could not be made.

Consequently, the Tribunal affirmed the decision not to grant the applicant a Temporary Business Entry (Class UC) visa, finding that the requirements for the Subclass 457 visa had not been met.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCESkills, qualification and employment background of the applicant 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. 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 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. 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. 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. 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.

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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