Poudel (Migration)

Poudel (Migration) [2020] AATA 504 (21 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Dr Bharat Raj Poudel
Mrs Shova Adhikari Poudel
Mr Rajarshi Poudel
Miss Rishika Poudel
CASE NUMBER:  1806103
DIBP REFERENCE(S):  BCC2016/2465255
MEMBER:Ian Berry
DATE:21 February 2020
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 21 February 2020 at 9:05am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Education Manager – subject of an approved nomination – nomination approval ceased – unique or exceptional circumstances – Ministerial Intervention requested – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 31, 65, 351
Migration Regulations 1994 (Cth), r 2.75; 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
The visa applicants applied for the visa on 25 July 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.
The delegate refused to grant the visas on 16 February 2018 on the basis that cl.457.223(4)(a)(iii) was not met because the applicant was the subject of an approved nomination which had ceased under r.2.75.
The applicants were represented by the first named applicant (the applicant) who appeared before the Tribunal on 28 October 2019 to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent, who was not present at the hearing.
Background
The applicant is a lecturer/teacher with Lianrick Pty Ltd. He holds qualifications such as a Doctor of Philosophy, Masters in Community Development, Masters of Arts, Bachelor of Science, and by this decision has completed his Diploma of Business, and certificate IV in Business.
The applicant is married and has 2 children. They are Nepalese by citizenship. His son his aged 20 years while his daughter is aged 16 years. The applicant advised the Tribunal of his son studying at university with his daughter at high school.
The applicant has provided documentation evidencing a contract dated 2 March 2001 with the United Nations development program in Kathmandu, Nepal. A reference concerning the United Nations development program dated 30 January 2002. A contract of agreement between Nepal Participatory Action Network (NEPAN) undated. A reference from Radio Sagarmatha, Nepal dated 26 September 2006. Letter from the Royal Nepal Academy of Science & Technology dated 24 August 2005 and a reference dated 9 October 2006 confirming the applicant having worked for the Nepal centre for disaster management as a program coordinator from 15 June 2003 to 14 June 2006.
The applicant currently works for Queens Ford College as a vocational education teacher (trainer and assessor). This educational institution has four colleges in the four major cities of Australia and it has been in business for 11 years. It is this organisation that has nominated the applicant for a regional 187 visa.
The applicant with his family entered Australia on 9 December 2006 after having been granted a TU-573 student visa.
From the Minister’s delegate’s decision made on 16 February 2018, the applicant’s visa history is detailed as follows:
a.The applicant’s employer Lianrick Pty Ltd lodged a sponsorship application which was refused by the Department on 18 November 2016 (first sponsorship).
b.Either prior to or with the sponsorship application, the sponsor had lodged a nomination application identifying the employer sponsoring the applicant. As the sponsor’s application was refused the nomination application was not processed.
c.On 19 December 2016, a new sponsorship application (second sponsorship) was lodged by the same sponsor which was refused on 16 March 2017.
d.Again, the sponsors application nominating a position where the applicant was identified as the nominee, was refused on 16 March 2017.
e.On 17 March 2017, a new sponsorship application (third sponsorship) was lodged by the same sponsor and it was refused on 17 July 2017.
f.As of 16 February 2018, the applicant was not the subject of an approved nomination.
g.The delegate was aware of the lodgement of a further sponsorship and nomination application (fourth sponsorship).
h.This sponsorship application was approved on 22 May 2018. Department records show that the related nomination application was refused on 22 May 2018.
i.On 4 September 2018, the Department approved a subsequently lodged nomination application where the position of Education Manager nec ANZSCO 134499. The applicant was identified as the 457 visa nominee.
j.From Departmental records, the applicant has lodged only one visa application on 2 August 2018.
The Tribunal received from the applicant a copy of notice of decision dated 4 September 2018 where Lianrick Pty Ltd had its nomination for a sponsor, approved[1].
[1] Tribunal file: folio 48.
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)(iii) that is, the applicant is the subject of an approved nomination that has not ceased.
Requirement for an approved nomination
Clause 457.223(4)(a)(iii) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
On 4 September 2018, the Department approved the sponsor’s nomination which identified the applicant as its nominee. The sponsor’s application to sponsor the applicant was granted by the Department for the period from 22 May 2018 to 21 May 2023.
The applicant’s visa application was made on 25 July 2016, but was refused by the Department on 16 February 2018.
Regulation 2.75 provides that the period of a nomination of an occupation concerning a 457 visa applicant ceases at the earliest of the events set out in sub-regulations (a) to (f).
Regulation 2.75 of the Regulations is set forth:
(1) This regulation applies to a nomination of an occupation in which a holder of, or an applicant or a proposed applicant for, a Subclass 457 (Temporary Work (Skilled)) visa is identified as the person who will work in the occupation.
(2) An approval of a nomination ceases on the earliest of:
(a)     the day on which Immigration receives notification, in writing, of the withdrawal of the
nomination by the approved sponsor; and
(b)     12 months after the day on which the nomination is approved; and
(c)      the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and
(d)     if the approval of the nomination is given to a standard business sponsor— 3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e)     if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled; and
(f)      if the approval of the nomination is given to a party to a work agreement (other than a
Minister) — the day on which the work agreement ceases
The approval of the sponsor’s standard business sponsorship was approved on 4 September 2018. Regulation 2.75(2)(b) provides that the approved nomination expires 12 months after the day on which the nomination is approved. It must be the earliest of the alternative sub-regulations in r. 2.75, of which r.2.75(b) satisfies that criteria. Therefore the sponsor’s nomination ceased on 5 September 2019.
359A letter to the Applicant and response
On 10 October 2019 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review, in writing. The particulars are set forth:
•It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that the primary visa applicant is the subject of a nomination by a standard business sponsor approved under s.140GB of the Act and that has not ceased.
•A review of Departmental records suggests that the primary visa applicant is not the subject of an approved nomination by a standard business sponsor that has not ceased the nomination previously approved for Lianrick Pty Ltd in respect of the primary visa applicant has ceased.
•The Migration Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018 commenced on 18 March 2018 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 enclosed to new applications.
This information is relevant to the review because it suggests that the primary visa applicant is not the subject of an approved nomination that has not ceased and that a new application for approval cannot be made. If we rely on this information and making a decision we may find that the primary visa applicant is not the subject of an approved nomination that has not ceased as required by clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) as in force at the date of the visa application. This would be a reason, or part of the reason, for affirming the decision under review to refuse to grant the visa to the primary visa applicant.
Further, if the decision under review to refuse to grant the visa to the primary visa applicant has affirmed, it follows that this would be the reason, or a part of the reason, for affirming the decision under review to refuse to grant the leases to the secondary visa applicants, as cl.457.231 of Schedule 2 to the Regulations as in force at the time of the visa application, requiring the secondary visa applicants to each be a member of the family unit of another person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa, would not be met as required.
The Tribunal’s invitation dated 10 October 2019, to the applicant to provide comment to the information given to him pursuant to s.359A, required the applicant to respond by 24 October 2019. On that day the applicant provided his response which set out below:
“1.The application was refused on the basis that I did not have an approved nomination in place at the time of the decision because the Department refused the earlier Nomination.
2.I re-lodged the nomination.
3.At the time of the application to AAT I had an outstanding application for Nomination.
4.That Nomination was approved during September 2018.
5.AAT did not open the file until my nomination had expired.
6.now I am left with no approved nomination at the time when the AAT is dealing with my application.
I am currently working for Queens Ford College (Malekhu Investments Pty Ltd as Vocational Education Teacher (trainer and assessor). It is an organisation having colleges in 4 major cities of Australia and running from the last 11 years. They also have lodged my application for RSMS visa that is also with the tribunal due for review.
Situation with a New Nomination.
•I seek to apply for new Nomination either from my current Nomination Leanne Pty Ltd if permitted by the tribunal.
• Alternatively, My current employer is also interested to Nominate me if permitted by the tribunal.
The nomination expired due to no fault of mine, and it is not in my control. The queue was so long at the tribunal and I seek to rectify my situation by lodging a new Nomination from the above companies. I have a very high hope from the tribunal as I am employed here in my children’s are at school. It would be extremely painful for to discontinue school and depart
I seek following from the Tribunal
• Allow me to lodge a new Nomination or
•Remit my application back to the department on the basis that the nomination expired due to no fault of mine.”
The Tribunal does not have the power to allow the lodgement of a new Nomination, and on the prevailing facts and law, does not have the power to remit the applicant’s application to the Department.
In order for the applicant to succeed on the issue before the Tribunal ‘the applicant must meet the requirements of cl.457.223(4)(a)(iii)’ he must show that his sponsor’s nomination ‘has not ceased as provided for in r.2.75’.
The Tribunal has carefully considered the applicant’s submission as detailed in paragraph 23 of this decision. While the Tribunal sympathises with the applicant in having the approved nomination expire, his opinion as to the Tribunal being the cause of his problem, is misplaced.
The applicant made a visa application, the only one, which was refused by a delegate because he did not have an approved nomination. It was refused, and thus the visa application was refused by the delegate has been the only decision the delegate could have made. From then to the date upon which the nomination expired, the applicant did not make another visa application. Had he done so then the limitations on the nomination would not apply. It is not for the Tribunal to know of either the intentions of the nominator or the applicant. It was upon the employer to notify him of the approved nomination, and it was for the applicant to make a visa application based on that approved nomination. Had he done so, he would have avoided the consequences of r.2.75(2)(b) as that condition would have been inapplicable once the applicants visa application was made provided it was within that 12 month period.
The Tribunal finds, and is satisfied, the approved nomination application in which the applicant is identified, ceased on 23 May 2019 (12 months after the sponsors approved sponsorship and at that time the applicant did not have an approved visa application.
For these reasons the requirements of cl.457.223(4)(a) are not met.
The secondary applicants are the applicant’s wife and children. As the secondary applicants do not satisfy cl.457.223 or cl.457.321 the secondary applicants do not satisfy all the requirements of the grant of a Subclass 457 visa.
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.
The Tribunal acknowledges the applicant’s circumstances where he now finds that his approved nomination has expired. The applicant has had a long journey in securing an approved nomination only to fall short of the line by his failing to make a visa application. The Tribunal takes into account those circumstances as well as the consequences for his family. His son is undertaking a university course and is doing well and similarly for his daughter who was in high school. It is those circumstances which ought to be put to the Department for the Minister to consider exercising his discretion.
Ministerial intervention
Section 31 of the Act provides that if the Minister thinks there is a public interest to do so, he may substitute a decision of the Tribunal for a decision, being a decision that is more favourable to the 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 Administrative Appeals Tribunal’s President’s Direction: Conducting Migration and Refugee Reviews; especially at paragraph 16.1 to 16.7 concern referrals for Ministerial Intervention and the Minister’s Guidelines on ministerial powers (s.351, s.417 and s.501J) available in PAM 3 (the Ministers Guidelines).
The guidelines for ministerial intervention followed the following principles:
a.The intention of the applicant leaving Australia after the conclusion of the statutory process.
b.Consideration of the case for intervention is at the Minister’s discretion and not to be considered as an extension of the visa process.
c.It is a consideration whether the applicant has a visa pathway available to the applicant (including an offshore pathway) then generally the Minister will not intervene.
d.The Minister viewing the case unfavourably if the applicant has not complied with the conditions of a previous visa, or having provided misleading information to a department or another relevant authority.
e.The visa status of the applicant is a relevant consideration. Whether the applicant is a lawful noncitizen.
f.The expectation that the applicant will make arrangements to live Australia, on the expectation the Minister will give careful consideration to the applicant’s circumstances including cooperation in ensuring that the applicants travel documents are available and develop and continue to engage with the Department and assist with any enquiries and in particular concerning the applicant’s identity.
g.An expectation that the applicant will continue to make arrangements leave Australia while their request for ministerial intervention is being progressed. If the applicant’s request for ministerial intervention is unsuccessful then the Minister would expect for the applicant the subject of the request, to leave Australia.
The Minister’s guidelines on ministerial powers refers to unique or exceptional circumstances. Cases which are being considered in respect of ministerial intervention have one or more unique or exceptional circumstances in which some are described below:
a.Strong compassionate circumstances that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship to an Australian citizen or an Australian family unit, where at least one member of the family is an Australian citizen or Australian permanent resident.
b.Compassionate circumstances regarding the age or health or psychological state of the person that is not recognised would result in serious, ongoing and irreversible harm and continuing hardship to that person.
c.Exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia.
d.Circumstances not anticipated by relevant legislation or clearly unintended consequences of legislation; or the application of relevant legislation leads to an unfair or unreasonable results in a particular case.
e.A person’s particular circumstances or personal characteristics provide a sound basis for believing that there is a significant threat to their personal security, human rights or human dignity if they return to their country of origin, but the mistreatment does not meet the criteria for the grant of any type of protection visa.
f.The person is excluded from the grant of a protection visa or has had a protection visa cancel refused on character grounds and their circumstances have been assessed as engaging Australia’s non-refoulement obligations because there are strong grounds for believing that, as a necessary and foreseeable consequence of the person been removed from Australia to a receiving country, where there is a real risk that the person was of significant harm is provided in s.36(2A) of the Act.
g.Other relevant considerations concerning Australia’s obligations under can mention on the rights of the child and other relevant matters. Circumstances where the continued presence of the person Australia would pose a threat to an individual in Australia or to Australian society or security or may prejudice Australia’s international relations. Whether there are character concerns particular in relation to criminal conduct. Information about the person’s history of compliance with Australian laws including such laws as fraud against migration or citizenship legislation; failure to comply with visa conditions; periods as an unlawful non-citizen; history of cooperation engagement with the Department to resolve their immigration issues and status particularly in relation to identity and travel documents and details of ongoing court proceedings and ultimately the level and nature of the person’s integration into the Australian community length of time they have been Australia both as a lawful and unlawful non-citizen.

This case is one which ought to be brought to the Minister’s attention for his consideration.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Ian Berry
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.

[2020] AATA 504

21 February 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction

Appeal