Ratthongkhong (Migration) - [2022] AATA 2243

Ratthongkhong (Migration) [2022] AATA 2243 (30 June 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Tanayuth Ratthongkhong
Miss Priyanuch Thaworn
REPRESENTATIVE:  Mr Paul Raymond O'Connor (MARN: 0854511)
CASE NUMBER:  1834409
HOME AFFAIRS REFERENCE(S):          BCC2017/3440454
MEMBER:Alison Mercer
DATE:30 June 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 30 June 2022 at 12:53pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – no response to s.359A invitation – loss of the right to a hearing – subject of an approved nomination – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363, 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223. 457.311
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 20 September 2017.
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 3 November 2018 on the basis that cl 457.223(4)(a) was not met, as the first named applicant was not the subject of an approved nomination by an approved standard business sponsor. The delegate also refused to grant a subclass 457 visa to the second named applicant (the first named applicant’s spouse) as she did not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 457 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal received a review application from the applicants on 22 November 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Paul O’Connor, as their representative and authorised recipient for correspondence.
On 9 June 2022, the Tribunal wrote to the applicants via their agent to invite them, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal noted that in the applicants’ subclass 457 visa application, the first named applicant was identified in a nomination made by his proposed employer, Skillpoint Consulting Pty Ltd, and that his visa application was refused by a delegate who determined that he did not meet cl.457.223(4)(a), which required that he was the subject of an approved nomination by an employer who was an approved standard business sponsor, and the nomination had not ceased. The Tribunal noted that the delegate found that there was no approved nomination by Skillpoint Consulting Pty Ltd.
The Tribunal advised the applicants that Skillpoint Consulting Pty Ltd lodged an application for review with the Tribunal of the decision to refuse to approve its nomination of the first named applicant for a subclass 457 visa, and that on 9 August 2021, the Tribunal (differently constituted) made a decision that it had no jurisdiction to review the Department’s decision to refuse the nomination made by Skillpoint Consulting Pty Ltd as the company had withdrawn its review application on 30 July 2021. The Tribunal stated that this indicated that the first named applicant was not presently the subject of an approved nomination by an approved standard business sponsor, and that this information would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse to grant the applicant a subclass 457 visa to him because one of the criteria contained within subclass 457 (namely, clause 457.223(4)(a)) required that at time of decision, the first named applicant was the subject of an approved nomination by a standard business sponsor. The Tribunal stated that it appeared that the first named applicant was not, and that its legal view was that any new nomination of him, whether by Skillpoint Consulting Pty Ltd, or another employer, could not satisfy cl.457.223(4)(a) due to the closure of the subclass 457 visa and associated nomination programme on 18 March 2018. The Tribunal advised that if the first named applicant did not meet cl.457.223(4)(a), then this would be the reason (or part of the reason) to affirm the decision to refuse to grant him a subclass 457 visa, as this was a mandatory criterion to be granted a subclass 457 visa. The Tribunal noted that it would also be the reason (or part of the reason) to affirm the decision not to grant the second named applicant a subclass 457 visa, as she would not meet the secondary visa criteria to be a member of the family unit of a person who held a subclass 457 visa, and there was no evidence that she met the primary visa criteria in her own right.
The Tribunal requested that the applicants provide a response or comments by 23 June 2022, and advised that if they did not (or did not request an extension of time to do so) by that date, then they would lose their right to a hearing, and the hearing of 24 June 2022 would be cancelled.
Neither their applicants nor their agent responded to the s.359A letter (or sought an extension to do so) by 23 June 2022. As a consequence, the Tribunal cancelled the hearing scheduled for 24 June 2022.
However, the applicants subsequently rang the Tribunal on 24 June 2022 to query why they had not been contacted for their telephone hearing. On being advised that the Presiding Member had cancelled the hearing due to their non-response to the s.359A letter by the due date, the applicants indicated that their agent had not advised them about the s.359A letter. On the direction of the Presiding Member, a Tribunal officer sent an email to the applicants via their agent on 24 June 2022 advising as follows:
As discussed on the phone today 24 June 2022, as the Tribunal did not receive a response to our letter dated 9 June 2022, the Presiding Member confirms that you have lost your right to appear before the Tribunal to give evidence and present arguments.
However, the Presiding Member agrees to defer making a decision in this matter until 29 June 2022 to enable you to provide any additional material you may wish to support the case.
Please provide this information in writing, by 5pm on 29 June 2022.
The Tribunal is satisfied that both its hearing invitation and s.359A letter were sent to the email address nominated by the applicants as their authorised recipient for correspondence. There is no evidence that either email was undelivered or undeliverable.
As the applicants failed to respond to a written invitation to provide information under s.359(2) of the Act, within the prescribed period (and did not seek an extension of time to do so within that period), the Tribunal finds that they have lost their entitlement to a hearing, pursuant to the combined effect of ss.359C(1), 360(3) and 363A of the Act. The effect of s.363A of the Act is that if review applicants have no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.
On 30 June 2022, the Tribunal received the following email response from the applicants’ agent:
Dear Member,
Apologies for the response after hours. I found this in the spam folder in Gmail online. The email did not download to my MacMail in my laptop. I am unaware why this problem exists and am looking at it to resolve the issue.

Mr. Tanayuth Ratthongkhong, applied to the AAT to appeal the decision to refuse his Visa expecting his then employer, was going to rectify the nomination problem in the tribunal.
He had relied on that for the application and for an outcome for an approval of his visa.

He has a new employer to sponsor him now and nominate him but unfortunately he does not have any nomination in place and the nomination was not lodged pre the visa application. He was trying to move his application to the new employer and had no idea this was not compliant.

He was expecting this would result in a positive outcome from the AAT appeal.

Unfortunately, he has had some bad advice in the past and came to me to assist him.

I believe the application would have merits if the nomination was reinstated and this was his hope all along. He did not lose hope this would happen and has sought to rectify this.
His previous employer is no longer operational and this has resulted in the current situation he finds himself in.

At this time he has no nomination to offer the Tribunal but his employer is taking steps to meet the requirements for nominating him and proceeding with an application. Labour Market Testing is underway and will be completed in the next 3 weeks.

Mr. Tanayuth Ratthongkhong, is a hard working restaurant manager with excellent skills for his profession. He was a victim of the COVID pandemic and suffered the consequences of the financial hardship imposed on businesses as a result of the lockdowns. Many businesses failed during this period and left so many stranded without options.

Had it not been for COVID his option would have been continuing.

Bankruptcy has affected so many businesses and business owners. This unintended consequence is not an expectation of Immigration law nor is it the intention. The binding nature of the regulations and the strict application of the regulations imposed unforseen punishment and suffering on the innocent victims of the consequences of the COVID pandemic.

Had this event not taken place then totally different outcome would have evolved.

Mr. Tanayuth Ratthongkhong is asking for consideration from the AAT for these unintended consequences to be considered in his appeal.
The Tribunal considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time to make further submissions and/or pursue other visa options. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (for instance, where the applicant would be able to imminently provide information that would favourably affect the outcome of the case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.
[1] [2002] FCA 617
[2] [2012] FMCA 28
[3] [2013] HCA 18 (8 May 2013)
[4] [2014] FCAFC 1 (4 February 2014)
[5] [2014] FCA 915 (28 August 2014)
However, given the confined nature of the criterion in dispute and the fact that any future nomination obtained by the applicant could not be used to satisfy cl.457.223(4)(a) for the reasons set out below, the Tribunal has elected not to defer its decision for a further period and instead will proceed to a decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
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.
It is not disputed that the nomination of the first named applicant for a subclass 457 visa by his employer, Skillpoint Consulting Pty Ltd, was refused by the Department, and that the Tribunal (differently constituted) found it had no jurisdiction to review that nomination refusal decision on 9 August 2021 as the employer withdrew their review application from the Tribunal on 30 July 2021. There is therefore no approved nomination of the applicant by that employer.
Significantly, the Tribunal is of the view that even if the first named applicant were able to secure a new nomination now, this would not satisfy cl.457.223(4)(a).
This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the first named applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined. In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review.
As noted above, in deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.
For the above reasons, the Tribunal finds that the requirements of cl 457.223(4)(a) are not met by the first named applicant.
The Tribunal notes the submissions from the agent received on 30 June 2022, to the effect that the failure of the nomination application, and of the applicant’s original employer’s business, were outside the applicant’s control and were largely due to the COVID19 pandemic, which adversely affected many Australian businesses and visa holders. While this is undoubtedly true, cl.457.223(4)(a) does not confer any discretion on decision makers (including the Tribunal) to waive or overlook its requirements where (for instance) there are compassionate and/or compelling circumstances in an applicant’s case and/or where the failure to meet the requirement in the provision is for reasons outside an applicant’s control. Nor is there any other provision in the Migration Act or Regulations that permits the Tribunal to exercise such a discretion.
Given the above, the Tribunal must find 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 first named applicant would be able to satisfy the specific criteria for those streams.
The Tribunal must also affirm the decision not to grant the second named applicant a subclass 457 visa as it finds that the second named applicant does not meet the secondary visa criteria in cl.457.311 requiring her to be a member of the family unit of a person who held a subclass 457 visa, and there is no evidence that she meets the primary visa criteria in her own right.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.
Alison Mercer
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.