Singh (Migration)

[2021] AATA 1321

Singh (Migration) [2021] AATA 1321 (31 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurbhej Singh

CASE NUMBER:  1815199

HOME AFFAIRS REFERENCE(S):          BCC2016/2874801

MEMBER:Katie Malyon

DATE:31 March 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 31 March 2021 at 4:37 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Contract Administrator – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES
MIAC v Sabra Bros Tiling Ltd (2011) 194 FCR 11

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant, Indian national Mr Gurbhej Singh, applied for the visa on 30 August 2016.

3. At the time the visa application was lodged, Class UC contained Subclass 457. 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 stream in cl 457.223, the Labour Agreement stream.

   Background

4. Mr Singh was nominated by his prospective employer and approved standard business sponsor SDC Services Pty Ltd (the Company) for the position of Contract Administrator ANZSCO 511111. 

5. The delegate refused to grant Mr Singh the visa on 21 May 2018 on the basis that cl.457.223(4)(a) was not met because he was not the subject of an approved nomination by the Company. A copy of the delegate’s decision was provided to the Tribunal.

   The Tribunal’s s.359A letter

6. On 19 February 2021, the Tribunal wrote to Mr Singh pursuant to s.359A of the Act inviting him to comment on or respond to information which it considered may be the reason, or part of the reason for affirming the decision under review. Having reviewed the available evidence, the Tribunal observed that the Company’s nomination application made in respect of Mr Singh for the position of Contract Administrator was refused by the Department on 19 April 2018. The Tribunal also noted that, although the Company applied to the Tribunal for review of the Department’s refusal of its nomination, on 30 November 2020 the Tribunal finalised the nomination review as withdrawn.

7. In its s.359 letter, the Tribunal noted that the Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 was introduced on 18 March 2018 (the Amending Regulations). The Amending Regulations repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and also repealed the Subclass 457 visa. Following introduction of the Amending Regulations, a new application for approval of a nomination in support of his Subclass 457 visa application can no longer be made. The Tribunal explained this is relevant because cl.457.223(4)(a) of Schedule 2 to the Regulations requires that, as at the date of this decision, a nomination of an occupation in respect of Mr Singh has been approved and that there is no such approved nomination. Further, if it relies on this information, the Tribunal may find that he does not meet this requirement such that the decision under review must be affirmed.

8. On 24 February 2021, the Tribunal received correspondence from Mr Singh’s previous representative, including a signed change of contact details form, informing the Tribunal that Mr Singh has withdrawn her role as his representative.  The email stated that Mr Singh will continue his merits review and represent himself at the hearing.

9. In light of the fact that the Tribunal had received a response to its s.359A letter and, consistent with the decision in MIAC v Sabra Bros Tiling Ltd (2011) 194 FCR 11, the Tribunal invited Mr Singh to attend a hearing.

   Hearing

10. Mr Singh appeared before the Tribunal by way of MS Teams video conference on 12 March 2021 to give evidence and present arguments. 

11. The Tribunal put to Mr Singh information outlined in its s.359A letter. It noted it had no discretion and must apply the law. Mr Singh confirmed he had wanted to start with the Company as a Contract Administrator in August 2016 following completion of his Diploma of Business and Diploma in Hospitality as the holder of a Student visa. The Company specialises in providing cleaning services across a range of business sectors including retail, hospitality, industrial and commercial premises.

12. Mr Singh said the Company told him they would sponsor him and so applications were lodged. However, there was a miscommunication issue with the immigration lawyer assisting the Company as she did not indicate that the position of Contract Administrator must require a minimum of 2 years’ relevant experience: as a result, the nomination was refused. The Tribunal notes this is consistent with the inapplicability condition (or caveat) relevant to the nominated occupation of Contract Administrator as set out in cl.9 of IMMI 18/004: the Company’s nomination did not meet r.2.72(10)(aa) of the Regulations because the nominated occupation and its corresponding 6-digit code did not correspond to an occupation in IMMI 18/004. Mr Singh told the Tribunal he did not, at that time, have the necessary 2 years’ experience but, since he has been working with the Company following completion of his studies, they said they would do everything possible to get him the visa. Consequently, the Company sought review of the delegate’s decision to refuse its nomination and Mr Singh sought review of the refusal of his Subclass 457 visa application.

13. Mr Singh added that, subsequently, in early 2020 the Company lost some of its customers including a number of Woolworths stores whose contracts he was administering.  As a result, it terminated Mr Singh’s employment and withdrew its review application lodged with the Tribunal.  Mr Singh said that he has tried many times to secure a new Contract Administrator job (now that he has more than 2 years’ experience in that role) but has not been successful.  He acknowledged there was no approved nomination and that the Tribunal must therefore affirm the delegate’s decision to refuse his Subclass 457 visa.

14. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether Mr Singh meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

16. 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.

17. As noted above, having reviewed the Department’s records, on 19 February 2021 the Tribunal wrote to Mr Singh pursuant to s.359A of the Act with details of information that is adverse to his application for review. The Tribunal observed that, although the Company applied for review of the Department’s decision of 19 April 2018 to refuse its nomination application, on 30 November 2020 the nomination review was finalised as withdrawn. The Tribunal also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made.

18. Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. There is no evidence before the Tribunal that there is any approved nomination of an occupation in relation to Mr Singh. He acknowledged this at the hearing.

19. Having regard to available evidence, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met by Mr Singh.

20. 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 stream in cl.457.223 of Schedule 2 to the Regulations, the Labour Agreement stream, and there is no evidence that Mr Singh would be able to satisfy the specific criteria for that stream.

    Is this an appropriate case to refer to the Minister?

21. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for her consideration under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally.

22. No documentation has been provided to the Tribunal to enable it to make an assessment as to whether this is an appropriate case to refer to the Minister consistent with the guidelines published by the Minister in PAM3 Minister’s guidelines on ministerial powers (s351, s417 and s501J).  In the circumstances, if Mr Singh wishes to seek ministerial intervention it is open to him to provide a submission and evidence to the Minister for her consideration.

    DECISION

23. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Katie Malyon

    
    Member

    Attachment - Extract from the Migration Regulations 1994

    457.223

    …

    (4) Standard business sponsorship 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.

    oOOo