ROY (Migration)

ROY (Migration) [2019] AATA 3611 (28 June 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr JAYANTA ROY
Mrs Paramita ROY
CASE NUMBER:  1620222
DIBP REFERENCE(S):  BCC2016/2764517
MEMBER:Alan McMurran
DATE:28 June 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Statement made on 28 June 2019 at 12:00pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– standard business sponsor stream– community worker (ANZSCO 411711) – previously approved nomination was refused – not the subject of an approved nomination – skills, qualifications and employment background requirements not met – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360
Migration Regulations 1994, r 2.75, 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 20 August 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 29 November 2016 on the basis that cl.457.223(4)(da) was not met, because the applicant did not have the necessary skill level, qualifications and/or employment background necessary to perform the nominated occupation of community worker (ANZSCO 411711).
The applicants were represented in relation to the review by their registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
Background
The applicant is a 38-year-old citizen of the Republic of India. The second named applicant is the applicant’s spouse.
The applicant is seeking the visa to work as a community worker for Bajrang Pty Ltd (the nominator) as trustee for Chaukra Family Trust.
The Tribunal has had regard to the Department file[1] and the details set out in the application. It includes details of the applicant’s work history with the nominator since 13 July 2015. Prior to that, the applicant gave a history of employment as a community worker in India from 11 July 2010 to 29 July 2012. The applicant has a Certificate III in aged care, dated 27 May 2016, issued by Quality Care Training and Development Pty Limited.[2]
[1] BCC2016/2764517 (“Department’s file”)
[2] Ibid at f 41
The applicant brought this application on 20 August 2016, and was then issued a Bridging visa, pending the outcome of the application.
According to the work history of the applicant outlined in the Department’s decision record[3], the applicant had worked as a senior accountant for Hazari Electronics, had a period of unemployment before working as a casual assistant cook, an assistant supervisor and then from January 2016 as a community worker.
[3] Ibid at f129
The Department sent a letter to the applicant on 1 October 2016 requesting evidence of his skills. The letter set out in some detail the evidentiary requirements.[4] The applicant did not respond to that letter prior to the delegate’s decision.
[4] BCC file at f 99
Following receipt of the application and the decision record from the applicant, the Tribunal wrote to the applicant on 30 November 2016, advising he could provide further information or evidence.
From an examination of the Tribunal’s file, there appears little or no communication following the Tribunal’s letter until 19 March 2019,[5] when the Tribunal sent a letter to the applicant’s representative under section 359A of the Act.
[5] T file at f 18
The letter was an invitation to comment or respond to information, and set out a request for the applicant to provide information as follows:
“The particulars of the information are:
·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 section 140GB of the Act.
·A review of your file and Departmental records suggests that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for Bajrang Pty Ltd in respect of you expired on 1 October 2017
·The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 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 and closed to new applications.”
The letter requested that the applicant provide comments or response to the Tribunal by 2 April 2019. The letter invited the applicant to seek an extension of time if required, subject to receiving that request also by 2 April 2019, and stating the reason why an extension was required.
The Tribunal’s file shows that the Tribunal’s letter was sent to the applicant’s nominated representative by email on the same date. The letter cautioned the applicant that he would lose any entitlement he might otherwise have to appear to give evidence and present arguments, if comments or response was not received within the specified period (allowed or extended).
On 2 April 2019, the representative for the applicant responded and requested an extension of time by email. This was for reason stated that “we could not contact the applicant for further information” and “we will submit the requested documents as soon as we receive an update from the applicant”.
The Tribunal responded on 3 April 2019 granting an extension of time for comments or response to be received from the applicant by 24 April 2019. The representative was advised by email from the Tribunal on the same day.
On 28 May 2019, the Tribunal sent an invitation to the applicant to appear at a hearing on 26 June 2019.
A check of the Tribunal file reveals that the applicant did not respond to the extension of time granted by the Tribunal to provide comments or response by 24 April 2019. The applicant did not request any further extension of time. No further communication has been received from the applicant or the representative and the applicant did not respond further to the Tribunal’s letter under s 359A, or to the invitation.
Pursuant to section 360 (3) of the Act, where a person is invited in writing to give information and does not do so before the time for giving it has passed, the Tribunal may make a decision on the review without taking any further action to obtain the information[6], and the applicant is no longer entitled to appear before the Tribunal.[7] The Tribunal considers that since its letter on 19 March 2019, a considerable period has elapsed without the applicant providing any further comment or information and that he has had a reasonable opportunity to do so.
[6] s.359C of the Act
[7] s.360(3)
On 18 June 2019, the Tribunal sent a further letter to the applicant rescinding the hearing invitation. The Tribunal’s letter stated:
“On 19 March 2019 the Tribunal wrote to you requesting information to demonstrate that you are the subject of an approved nomination. You were informed that any information should be received by the Tribunal by 2 April 2019 and that if you could not provide information by that date, you could request more time. It was also advised that you may lose your entitlement to a hearing you might have otherwise had under the Migration Act, but this will be determined by a Member. On 2 April you requested an extension of time to provide the requested documents. This was granted and a new due date of 24 April was provided. No further responses been received by the Tribunal in this matter.
Your case was allocated to a Member on 30 May 2019. They have determined that you have lost your entitlement to a hearing. A decision will be made on the available evidence and documents before the Tribunal. If you wish to make any further submissions please do so by 24 June 2019, after which time the Tribunal will make a decision on the evidence before it.”[8]
[8] T file at f 34
The applicant did not respond to the Tribunal’s letter of 18 June 2019 and a check of the Tribunal’s file reveals that no further response has been received. The Tribunal has proceeded to deal with the application on the information presently available from the Tribunal’s file and the Department’s file.
CONSIDERATION OF CLAIMS AND EVIDENCE
The threshold issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(a).
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.
In the present case, the department’s records reveal that the previously approved nomination in favour of the applicant by the nominator expired on 1 October 2017.
On 18 March 2018, the 457 visa program was repealed and replaced with the Temporary Skill Shortage (TSS) visa program, and new Migration Regulations came into effect on the same day. As at 18 March 2018, the applicant was not the subject of an approved nomination which had not ceased.
A savings provision was included in the new Regulations to ensure that nominations made before 18 March 2018 and linked to a 457 visa application would not cease during the progress of an AAT review. The saving provisions however did not commence until 18 March 2018[9] and there is nothing to indicate in the drafting that the provision is to take effect prior to this date. In other words, the savings provision does not have a retrospective effect so as to apply to nominations that had already ceased before 18 March 2018.
[9] Cl.6704(15)
Clause 2.75 (2) (b) of the Regulations provides that an approval of a nomination ceases 12 months from the day on which the nomination is approved. The purpose is clearly to provide a finite or endpoint in the process whereby nominations and related visa applications are concluded. The effect of regulation 2.75 is to end the approval of a nomination, which in this instance occurred on 1 October 2017. As there was no approved nomination in place in favour of the applicant as at 18 March 2018, the nominator’s rights having already been extinguished, the applicant is not the subject of an approved nomination where that approval has not ceased.
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.
Having carefully considered the information available on the Department and the Tribunal files, and having regard to the legislation and Regulations (as amended) and referred to above, the Tribunal finds the applicant is not the subject of an approved nomination, where that approval has not ceased.
For these reasons the requirements of cl.457.223 (4)(a) are not met.
Skills, qualification and employment background of the applicant
The delegate’s decision found that, on the information provided,” the applicant’s relevant employment experience with the sponsor does not demonstrate that the primary applicant has at least 3 years of relevant experience. The primary applicant did not demonstrate that he has the relevant qualification for the position of a Welfare Support Worker.”
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.
In light of the finding that the applicant does not meet clause 457.223 (4)(a), the Tribunal does not strictly need to review those issues relating to subclause 457.223 (4)(da) adverted to by the delegate, as the applicant must satisfy all criteria in order to qualify for the visa. The applicant has been advised of the threshold issue as above by the Tribunal, and as to the skills, qualification and experience issue by the Department’s decision.
The Tribunal notes that no additional information or submissions have been made by the applicant in support of his skills, qualifications or experience, and the Tribunal has had regard only to the existing information on the Tribunal’s file and the Department’s file.
The Tribunal finds on that information that under the ANZSCO skill level guide for a community worker (ANZSCO 411711), the applicant needs to be the holder of an associate degree or advanced diploma or have at least 3 years of relevant experience to substitute for the formal qualifications. The Tribunal has been unable to obtain any further information about the work background from the applicant.
On the basis of the work history provided by the applicant to the Department[10]which illustrates prior employment as an accountant, a period of unemployment, some experience as a casual assistant cook and as an assistant supervisor, (as at January 2016), the Tribunal is not satisfied and finds the applicant does not have the requisite 3 years’ relevant experience for the role sought of community worker.
[10] DIBP file at f 129
For these reasons the Tribunal finds that the applicant does not satisfy the requirements of cl.457.223 (4)(da).
Secondary Applicant
Clause 457.321 provides that the (secondary) applicant is a member of the family unit of a person (the primary applicant) who having satisfied the primary criteria is the holder of a Subclass 457 visa.
In this instance, the primary applicant is not the holder of a Subclass 457 visa and as a result, the Tribunal finds the secondary applicant does not meet clause 457.321.
Summary
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.
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Alan McMurran
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.

[2019] AATA 3611

28 June 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Statutory Construction

Procedural Fairness

Jurisdiction