Singh (Migration) - [2021] AATA 1482

Singh (Migration) [2021] AATA 1482 (28 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Gurpreet Singh
Mrs Sandeep Kaur
CASE NUMBER:  2008001
DIBP REFERENCE(S):  BCC2016/2837453
MEMBER:R. Skaros
DATE:28 April 2021
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 April 2021 at 11:07am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Federal Circuit Court remittal – applicant has the qualifications and experience to work in the occupation – nomination ceased – not the subject of an approved nomination – applicant was adversely affected by the legislative changes to the temporary work program – Ministerial intervention– decision under review affirmed
LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, rr 2.72, 2.75, Schedule 2, cl 457.223
CASES
BVT20 v MICMSMA [2020] FCAFC 222
James v MICMSMA [2020] FCCA 1888
Mangat v MHA [2019] FCCA 2227
Poonia v MIAC [2011] FMCA 381
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 26 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 25 January 2017 on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.
The applicant provided a copy of the delegate’s decision record with the application for review. On 31 July 2019 the Tribunal, differently constituted, found that the applicant had met the requirements in cl.457.223(4)(da) but nevertheless affirmed the Department’s decision not to grant the 457 visa on the basis that cl.457.223(4)(a), which requires the applicant to have a current approved nomination, was not satisfied at the time of decision.
The applicant applied for judicial review of that decision and on 6 May 2020 the Federal Circuit Court (FCC), by consent, remitted the matter to the Tribunal to determine the application according to law.
On 18 May 2019…

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

Case: [2021] AATA 1482
Decision Date: 28 April 2021

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457, made by an applicant who had a nomination from Hamdan Bros Pty Ltd trading as Country Growers. The nomination was initially approved, but the visa application was refused on the basis that the applicant did not meet the requirements relating to his skills, qualifications, and employment background. The applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, specifically whether he was the subject of an approved nomination that had not ceased. This question arose in the context of legislative changes introduced by the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018, which commenced on 18 March 2018. The applicant contended that certain provisions within these amendments, specifically item 6704(15) of Schedule 13, preserved the validity of his nomination.

The Tribunal reasoned that the nomination, approved on 18 October 2016, would ordinarily cease 12 months after approval under regulation 2.75(2)(b). It found that the applicant's representative's argument that item 6704(15) applied was not persuasive, as the Tribunal was not satisfied that this provision applied retrospectively to nominations that had already ceased before the commencement of the Amending Regulations on 18 March 2018. Consequently, the Tribunal concluded that the nomination had ceased on 18 October 2017 and affirmed the decision not to grant the visa. However, the Tribunal indicated it would refer the matter to the Minister, having considered the ministerial guidelines relating to discretionary power.

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 EVIDENCE The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).Background The applicant applied for a 457 visa on the basis of a nomination in the occupation of Supply and Distribution Manager (ANZSCO 133611) made by Hamdan Bros Pty Ltd trading as Country Growers (Hamdan Bros). The nomination was approved by the Department on 18 October 2016. The visa application was refused on 25 January 2017 because the delegate was not satisfied that the applicant met the requirement in cl.457.223(4)(da) which related to his skills, qualifications and employment background. The applicant applied for review of that decision on 6 February 2017. During the processing of the review, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations) commenced. On 14 March 2019 the previously constituted Tribunal wrote to the applicant pursuant to s.359A of the Act and invited the applicant to comment on information which it considered would be the reason or part of the reason for affirming the decision under review. The information was relevant to whether the applicant was the subject of an approved nomination which has not ceased. It was noted that Departmental records indicated that the last nomination approved in respect of the applicant, being the nomination by Hamdan Bros, ceased to be in effect on 18 October 2017. In response, the applicant’s representative acknowledged that normally a nomination would cease 12 months after approval under r.2.75(2)(b) of the Regulations, but contended that this provision did not apply to the applicant in this case as his circumstances were covered by item 6704(15) of the Amending Regulations. Relevantly, paragraphs (14) and (15) of 6704 of Schedule 13 to the Amending Regulations provide that:(14) Despite the amendments of regulation 2.75 made by the amending regulations, that regulation, as in force immediately before the commencement of Schedule 1 to the amending regulations, continues to apply in relation to a nomination made before the commencement day.(15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day [18 March 2018] 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(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. After considering the representative’s submissions, the previously constituted Tribunal affirmed the decision as it was not satisfied the applicant was the subject of a current approved nomination as required by cl.457.223(4)(a). The Tribunal found that r.2.75(2)(b), as in force immediately before 18 March 2018, applied and as such, the nomination in respect of the applicant ceased 12 months after approval, being 18 October 2017. The Tribunal further noted that there was nothing in the drafting of the Amending Regulations to indicate that cl.6704(15) applied retrospectively to nominations that had already ceased before 18 March 2018.Proceedings before the Federal Circuit Court

Decision

Reasons for decision

Having considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s policy, the Tribunal will refer the matter to the Minister.DECISION The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.R. SkarosSenior MemberATTACHMENT - 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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