Sadyal v Minister for Home Affair
[2019] FCCA 843
•5 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SADYAL & ORS v MINISTER FOR HOME AFFAIR & ANOR | [2019] FCCA 843 |
| Catchwords: MIGRATION – Review of Tribunal decision – application for subclass 457 visa – whether jurisdictional error on part of Tribunal – no jurisdictional error established – application dismissed – costs. |
| Legislation: Migration Act 1958 (Cth), ss.65, 140GB |
| Cases cited: Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842 |
| First Applicant: | DINESH SADYAL |
| Second Applicant: | SHABNAM JARIYAL |
| Third Applicant | ANNIKA SADYAL |
| First Respondent: | MINISTER FOR HOME AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | CAG 37 of 2018 |
| Judgment of: | Judge Tonkin |
| Hearing date: | 22 February 2019 |
| Date of Last Submission: | 22 February 2019 |
| Delivered at: | Canberra |
| Delivered on: | 5 April 2019 |
REPRESENTATION
| Solicitors for the Applicants: | R & J Lawyers |
| Solicitors for the Respondent: | Clayton Utz |
ORDERS
The application is dismissed.
The applicant shall pay the first respondent’s costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAG 37 of 2018
| DINESH SADYAL |
First Applicant
| SHABNAM JARIYAL |
Second Applicant
| ANNIKA SADYAL |
Third Applicant
And
| MINISTER FOR HOME AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
This matter is related to matter CAG36 of 2018[1] wherein the applicant in those proceedings (Canberra Fresh) sought to review the decision of the Tribunal affirming the decision of the Departmental delegate to refuse to approve an application for a nominated occupation of Customer Service Manager (ANZSCO – 149212) under section 140GB of the Migration Act 1958 (Cth) (“the Act”). CAG36 of 2018 heard and determined by me on 22 February 2019 and the application for review was dismissed.
[1] Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842.
The primary visa applicant in this matter seeks judicial review of a decision of the second respondent (Tribunal) made on 8 May 2018 affirming the decision of the delegate of the first respondent (Minister) not to grant the applicant (Mr Sadyal) a Temporary Work (Skilled) (subclass 457) visa under section 65 of the Act[2]. The Tribunal refused to grant the visa on the basis that the primary visa applicant was not the subject of an approved nomination made by the standard business sponsor as required by clause 457.223 (4) (a) to Schedule 2 to the Migration Regulations1994 (Cth) (“the Regulations”).
[2] As the first applicant’s visa application was refused so too were the second and third applicants on the basis that they failed to satisfy the Tribunal that they were family members of the person who held a subclass 457 visa.
The primary visa applicant relied on the grounds for judicial review agitated with respect to the related matter CAG 36 of 2018 in addition to short written submissions filed in the current matter. The first respondent relied on written submissions filed with respect to matter CAG 36 of 2018. Neither party advanced any further oral argument. Both parties agreed that the outcome of this matter was contingent upon the Court’s determination of matter CAG 36 of 2018.
Evidence
The parties relied on the Court Book filed in these proceedings.
Consideration
On 5 October 2015 Mr Sadyal applied for a Temporary Work (Skilled) (subclass 457) visa (“457 visa”) with his wife and child as dependent applicants. He had been nominated for the position of Customer Service Manager[3] (ANZSCO – 149212) by his employer Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust (“Canberra Fresh”). Canberra Fresh had been approved as a standard business sponsor by Notice of Decision dated 6 October 2015.[4] At the time the 457 visa application was lodged, Class UC contained subclass 457.
[3] On 18 December 2015 Canberra Fresh applied for approval of a nominated occupation of Customer Service Manager with Mr Sadyal nominated for that position.
[4] CB175 - 176
The criteria for a subclass 457 visa are set out in clause 457 of Schedule 2 to the Regulations[5]. One of the criteria to be satisfied at the time the decision was made is set out at clause 457.223 which requires the applicant for a 457 visa to satisfy one of the alternatives. The applicant nominated 457.223 (4) (a) which applies to sponsorship for employment in nominated occupation by a standard business sponsor. The nominated occupation was a Customer Service Manager in accordance with ANZSCO – 149212.
[5] See Attachment “A”
On 22 July 2016 a Departmental delegate refused an application by Canberra Fresh for approval of a nominated occupation namely Customer Service Manager on the basis that the applicant had not met the relevant prescribed criteria for the nominated occupation as set out in sub regulation 2.72 of the Regulations. Sub regulation 2.72 (10) (f) of the Regulations required the Minister to be satisfied that “the position associated with the nominated occupation is genuine.”
On 22 July 2016 a Departmental delegate refused the primary visa applicant’s application[6] for a Temporary Work (Skilled) (subclass 457) visa on the basis that the applicant had not satisfied clause 457.223 (4) (a) of the Regulations requiring the applicant to be subject to an approved nomination.
[6] CB102 - 105
On 12 August 2016 the primary visa applicant applied to the Tribunal for review of the delegate’s decision to refuse his application for a 457 visa.
On 20 March 2018 the Tribunal conducted a hearing of Canberra Fresh’s application for approval of a nominated occupation. The director for Canberra Fresh and the primary visa applicant appeared before the Tribunal gave evidence and presented argument.
On 17 April 2018 the Tribunal affirmed the decision of the delegate to the Minister not to approve the nomination of Customer Service Manager. On 18 April 2018 the primary visa applicant was advised of the outcome of the decision to refuse the nominated occupation. He was advised that his application for a subclass 457 visa had been refused on the basis that he had not satisfied the Minister that he was subject to an approved nomination of an occupation by a standard business sponsor under section 140GB of the Act clause 457.223 (4) (a).[7] He was invited to make comment or respond.
[7] CB128
On 8 May 2018 the Tribunal affirmed the decision[8] not to grant the applicant a 457 visa on the basis that the requirement of an [9]approved nomination had not been met.
[8] CB133 - 135
[9] CB 134 [3]
The applicant applied for judicial review of the Tribunal’s decision.
Consideration
The Tribunal’s decision is dated 8 May 2018.[10] The Tribunal determined that under the Act a visa cannot be granted unless an applicant meets the relevant legal requirements under the Migration Act and Regulations. The applicant made a claim under 457.223 (4) (a) on the basis that he was subject to standard business sponsorship. Clause 457.223 (4) (a) provided that the applicant had to satisfy the Minister that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor and that had not ceased.
[10] CB133 - 135
The delegate on 22 July 2016 refused to grant the visa on the basis that the approval for a nominated occupation by the nominating business (Canberra Fresh) was refused by the delegate. That decision was affirmed by the Tribunal on 17 April 2018.
The Tribunal noted that the primary visa applicant appeared before the Tribunal on 20 March 2018 in relation to Canberra Fresh’s application with respect to the nominated occupation. The Tribunal explained to the primary visa applicant during the hearing that the outcome of his visa review application was contingent upon the outcome of the review of the delegate’s decision to refuse to approve Canberra Fresh’s nominated occupation.
On 18 April 2018 the Tribunal wrote to the first applicant inviting him to comment on the outcome of proceedings and extended time to respond to 2 May 2018. The primary visa applicant did not respond.
Finding of the Tribunal
The Tribunal determined that the requirements for the standard business sponsor stream had not been met in that clause 457.223 (4) (a) required the primary visa applicant to establish that he was subject to an approved nomination of an occupation by a standard business sponsor that had not ceased. The Tribunal determined that the primary visa applicant was not the subject of an approved nomination by a standard business sponsor. Further no claims had been made with respect to any other streams under clause 457.223. The Tribunal affirmed the decision not to grant the primary visa applicant[11] a Temporary Work (Skilled) subclass 457 visa.
[11] As the primary visa applicant did not satisfy the prescribed criteria for the grant of a subclass 457 visa, the secondary visa applicants failed to establish under clause 457.321 that they were members of a family unit of another person who holds a subclass 457 visa and did not satisfy the requirements for the grant of a subclass 457 visa.
Review grounds
The applicant argued three review grounds:
Ground one: The Tribunal acted unreasonably in affirming the refusal of nomination by the employer of the first applicant and so wrongly affirmed the decision of the delegate not to grant the first applicant a Temporary Work (Skilled) (subclass 457) visa.
I refer to my reasons set out in Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust v Minister for Home Affairs & Anor [2019] FCCA 842 in relation to this ground of review, in particular the reasons set out at paragraphs 33 to 49 (inclusive). The applicant failed to satisfy the Tribunal that there was an approved nomination of an occupation relating to the applicant by a standard business sponsor and failed to meet the requirement under clause 457. 223 (4) (a) of the regulations. I am satisfied that the decision of the Tribunal in affirming the decision of the delegate not to grant the 457 visa was not wrongly decided. There was no jurisdictional error.
Ground two: The Tribunal took irrelevant considerations into account in affirming the decision of the first respondent not to approve the nomination and so wrongly affirmed the decision of the delegate not to grant the first applicant a Temporary Work (Skilled) (subclass 457) visa.
The primary visa applicant did not identify any irrelevant considerations in written submissions but argued that the Tribunal’s decision in affirming the delegate’s decision to refuse the approval of the nominated occupation on the basis that it was not satisfied it was genuine was an “unreasonable exercise of its jurisdiction.” This matter was considered in my decision in Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust (supra).
The assertion by the applicant that “the Tribunal failed to consider that the number of complaints over a certain period of time was not decisive on the determination of a particular role” misunderstands the evidence before the Tribunal. The Tribunal took into account that there were few complaints and a range of other matters in concluding that the actual role of the primary visa applicant was to provide a range of retail services and supervise staff in conjunction with the store manager and the scale and size of the business operation did not require a designated Customer Service Manager having regard to the fact that the position as indicated in ANZSCO was highly specialised and involved strategic planning, policy development and review, implementation of after sales service for the purpose of following up customer satisfaction and identifying and responding to customer expectations. Error was not established. Given that the applicant failed to satisfy the Tribunal that he was subject to an approved nomination of an occupation by a standard business sponsor the decision by the Tribunal affirming the decision to refuse to grant the 457 visa was not wrongly decided.
Ground three: The Tribunal misinterpreted the law or misapplied the law to the facts in the nomination decision and so wrongly affirmed the decision of the delegate not to grant a Temporary Work (Skilled) (subclass 457) visa.
This ground is addressed in my reasons in relation to Canberra Fresh Group Pty Ltd ATF Canberra Fresh Group Trust (supra). Given that the applicant failed to satisfy the Tribunal that he was subject to an approved nomination of an occupation by a standard business sponsor the decision by the Tribunal affirming the decision to refuse to grant the 457 visa was not wrongly decided.
Conclusion
The Court is not satisfied that the applicant has established any jurisdictional error on the part of the Tribunal. The application is dismissed.
I certify that the preceding twenty-four (24) paragraphs are a true copy of the reasons for judgment of Judge Tonkin
Date: 5 April 2019
Subclass 457-Temporary Work (Skilled)
457.1-Interpretation
457.111
(1)In this Part:
adverse information has the meaning given by subregulation 2.57(3).
Note:For AUD, labour agreement, ownership interest and standard business sponsor: see regulation 1.03.
(3)In this Part:
(a)a person is associated with a corporation, partnership, unincorporated association or other entity that has made a nomination in relation to an applicant for a visa in the same way in which, under subregulation 2.57(2), a person is associated with an applicant; and
(b)subregulation 2.57(2) is to be applied as if a reference in that subregulation to an applicant were a reference to the person who has made the nomination in relation to the applicant; and
(c)an expression in subregulation 2.57(2) that is defined in subregulation 2.57(1) has the meaning given by that subregulation.
457.2-Primary criteria
Note:The primary criteria must be satisfied by at least one applicant. Other applicants who are members of the family unit of the applicant who satisfies the primary criteria need satisfy only the secondary criteria.
457.21-Criteria to be satisfied at time of application
457.211
If the applicant is in Australia at the time of application:
(a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or
(b)if the applicant does not hold a substantive visa at the time of application:
(i)the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and
(ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.
Note: Special purpose visa is defined in subsection 5(1) of the Act.
457.22-Criteria to be satisfied at time of decision
457.221
If the applicant is in Australia, the applicant has complied substantially with the conditions that apply or applied to the last of any substantive visas held by the applicant, and to any subsequent bridging visa.
457.221A
If the applicant was outside Australia at the time of making their application, but inside Australia at the time of the decision on the application:
(a)the applicant holds a substantive visa, other than a Subclass 771 (Transit) visa or a special purpose visa; or
(b)if the applicant does not hold a substantive visa at the time of the decision on the application:
(i)the last substantive visa held by the applicant was not a Subclass 771 (Transit) visa or a special purpose visa; and
(ii)the applicant satisfies Schedule 3 criteria 3003, 3004 and 3005.
Note: Special purpose visa is defined in subsection 5(1) of the Act.
457.223
(1)The applicant meets the requirements of subclause (2) or (4).
Labour agreements
(2)The applicant meets the requirements of this subclause if:
(a)the occupation specified in the application is the subject of a labour agreement; and
(b)a nomination of an occupation in relation to the applicant:
(i)has been approved under section 140GB of the Act; and
(ii)has not ceased to have effect under regulation 2.75; and
(c)the applicant is nominated by a party to the labour agreement; and
(d)if the Minister requires the applicant to demonstrate that he or she has skills and experience that are suitable to perform the occupation-the applicant demonstrates that he or she has those skills and that experience in the manner specified by the Minister; and
(e)the Minister is satisfied that the requirements of the labour agreement have been met in relation to the application; and
(f)either:
(i)there is no adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement; or
(ii)it is reasonable to disregard any adverse information known to Immigration about a party to the labour agreement or a person associated with the party to the labour agreement.
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; if the person who made the approved nomination met
(B) 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
(ea) if:
(i)the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and
(ii)in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;
the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and
(eb) if:(i) the applicant is not an exempt applicant; and
(ii) subclause (6) does not apply to the applicant; and
(iii) at least 1 of subparagraphs (ea)(i) and (ii) does not apply; 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.
457.223B
The Minister is satisfied that the applicant has adequate arrangements in Australia for health insurance during the period of the applicant's intended stay in Australia.
457.223C
If the nominated occupation is a medical practitioner, the applicant's qualifications are recognised by the relevant authority in Australia for the registration of medical practitioners as entitling the applicant to practise as a medical practitioner
457.224
(1) The applicant satisfies public interest criteria 4001, 4002, 4003, 4004, 4006A, 4010, 4013, 4014, 4020 and 4021.
(2) If the applicant had turned 18 at the time of application, the applicant satisfies public interest criterion 4019.
457.225
The applicant satisfies special return criteria 5001, 5002 and 5010.
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