Singh (Migration)

[2019] AATA 5096

Singh (Migration) [2019] AATA 5096 (31 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gurpreet Singh
Mrs Sandeep Kaur

CASE NUMBER:  1701980

DIBP REFERENCE(S):  BCC2016/2837453

MEMBER:Alan McMurran

DATE:31 July 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 31 July 2019 at 2:10pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Supply and Distribution Manager – previously approved nomination expired –Temporary Skill Shortage visa program – approved nomination expired before amending provisions came into force – skills, qualifications and employment background – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994(Cth), r 2.75, Schedule 2, cls 457.223, 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged on 6 February 2017 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).

2. The visa applicants applied for the visa on 26 August 2016.

3. 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.

4. 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 applicant did not have the skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation of Supply and Distribution Manager (ANZSCO 133611).

5. The secondary applicant and family member who is the primary applicant’s spouse was found not to meet the secondary criteria in Regulation 457.321, which requires the primary applicant being the holder of a 457 visa.

6. The applicants appeared before the Tribunal on 26 June 2019 to give evidence and present arguments. The Tribunal received oral evidence from the primary review applicant, Gurpreet Singh, and submissions from the representative.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   Background

9. The applicant is a 36-year-old citizen of the Republic of India. The applicant came to Australia on a student visa in 2008, to study marketing at Canterbury College in Sydney. The applicant enrolled in a Diploma in Management in 2011 at Central College at Redfern, but did not complete the course. In 2012/13, the applicant enrolled in the Australian Vocational and Language College at Parramatta, obtaining an Advanced Diploma of Management in April 2013. The applicant continued his studies at Holmes College, enrolled initially in a Bachelor of Business, and then studying Commercial Cookery. Neither of these courses was completed.

10. While in Australia, the applicant worked when a student, for approximately 20 hours per week in the grocery industry, initially with Trim’s Fresh in Leichardt Markettown. The applicant gained experience as a co-manager, while working part-time in the role from 1 November 2010 to 30 August 2014, and for a further short period from 28 May 2015 to 27 May 2016. While working at Leichardt, the applicant was introduced to the sponsor, Hamdan Bros trading as Country Growers (the sponsor). The applicant was offered a position as supply manager with the sponsor in about March 2016. The sponsor states that the employment as supply manager commenced in December 2016.[1]

    [1] T case file at f 123

11. The sponsor is an approved standard business sponsor by agreement covering the period from 18 October 2016, expiring 18 October 2021. The sponsor’s application for approval of the nomination of the applicant as a supply and distribution manager was approved by the Department on 18 October 2016, expiring on 18 October 2017.[2]

    [2] Ibid f 135

12. As at the date of the hearing of this review, the nomination approval had expired and the Tribunal has no evidence before it of any further or other current nomination approval for the applicant in the role of supply and distribution manager.

    Tribunal Hearing

13. Both applicants appeared at the hearing with their representative and made submissions. The applicants supplied a copy of the delegate’s decision with the application.

14. On 14 March 2019, the Tribunal sent a letter to the applicants under section 359A of the Act.[3] The letter was an invitation to comment or respond to certain particulars, 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 Mr.Gurpreet Singh is 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 HAMDAN BROS PTY LTD in respect of you expired on 18 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.”

    [3] Ibid at f 23

15. The applicant responded by their representative on 25 March 2019.[4] The response enclosed copies of an Explanatory Statement by the Minister[5] in respect of the new legislation, the statement being authorised  on15 March 2018 together with attachments. The attachments included the authorising provisions, details of the amending legislation and the new Regulations, and the Regulation Impact Statement. The submission included a copy of the new Regulations and the Part 67 amendments and in particular clause 6704 entitled “Application and transitional provisions in relation to amendments of part 2A.”[6]

    [4] Ibid at ff 26-101

    [5] Ibid at f 99

    [6] Ibid at f 30

16. The written submission sets out as follows:

    “You mention in your letter that after reviewing our client’s file and Departmental records that they are not the subjects of an approved nomination by a standard business sponsor because the nomination previously approved for HAMDAN BROS PTY LTD in respect of their 457 visa applications expired on 18 October 2017.

    We are writing to respectfully disagree with that view and submit that due to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, more specifically Subclause 6704 (15), nominations linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa.

    Normally they would cease after 12 months of approval under paragraph 2.75 (2) (b) of the Regulations, but since the amendments I mention above, this is not the case anymore.”

17. The relevant Subclause states at (15):

    “(15) However, paragraph 2.75 (2) (b) does not apply in relation to a nomination made before the commencement day[7] 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 the decision to refuse to grant the visa.”

    [7] 18 March 2018

18. On 31 May 2019, the representative emailed the Tribunal advising more documents would be provided for the Tribunal to consider[8], and those written submissions together with attachments was received by the Tribunal on 18 June 2019.

    [8] T case file ff 112-159

19. In summary, those submissions referred to the applicant’s background and experience and submitted that the primary review applicant had sufficient qualifications for the role nominated of supply and distribution manager both in terms of his academic qualifications (including his bachelor degree obtained in India) and while working part-time for “just short of 5 years” in the nominated role, both at Leichardt and then subsequently with the nominator from 2016. The submission says in conclusion, “The work experience accumulated may not had reached the minimum 5 years required at the time of application, but we submit that even then and even so, our client met 457. 223 (4) on the basis that he had a bachelor and almost 5 years of work experience” (sic). That did not include the further experience obtained since lodgement of the application in February 2017 and continuing.

20. The Tribunal raised these issues for discussion and invited comments at the hearing, and in respect of which, the applicant deferred to the representative and to the submissions mentioned above. The representative likewise referred to her detailed written submissions. On completion of the hearing, the applicant did not seek an adjournment or any extension of time to make further comments, but was relying on the submissions already made.

21. At the hearing, the Tribunal asked questions of the primary review applicant about his background and his work experience and explained to him the purpose of the hearing which was to determine the issue in relation to the nomination, and whether the Regulations were met.

22. The Tribunal was satisfied the applicant appeared to understand the issues raised and the matters discussed. Although there was no interpreter present, the Tribunal was satisfied that the applicant appeared to have a good command of the English language and made no complaint as to his understanding of the discussion with the Tribunal, other than deferring to his representative in relation to the issues concerning the amended legislation and the representative’s submissions in that regard. The applicant did not ask to make any further comments or submissions as to his work experience and by way of response and the Tribunal has dealt with the matter on the basis of the information now provided.

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4).

24. The Tribunal has had regard to the information in the Department file[9] , the Tribunal case file[10] and the matters raised at hearing.

    [9] BCC 2016/2837453

    [10] 1701980 FF 1-159

    Requirement for an approved nomination

25. 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.

26. In the present case the Department’s records reveal that the previously approved nomination in favour of the applicant by the sponsor expired on 12 May 2017.

27. 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.

28. 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[11]. The saving provision however did not commence until 18 March 2018, 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.

    [11] cl.6704(15)

29. 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 18 October 2017.

30. 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.

31. The Tribunal has carefully considered the applicant’s submission, but finds instead it prefers the interpretation as set out above in relation to the savings provision in the amended Regulations. The Tribunal has no discretion in relation to the requirement for an approved nomination, which in this instance had expired prior to the amending provisions coming into force.

32. The Tribunal finds there is no other retrospective transition provision which would enable the expired nomination which has ceased to be re-enlivened. The Tribunal also notes that it is not possible to “tack on” the 457 application to a later 482 visa application, where there is a subsequent nomination made and approved by the sponsor. The programs operate independently and the 457 program is now repealed.

33. For these reasons the requirements of cl.457.223 (4)(a) are not met.

34. Ordinarily, that is sufficient to dispose of the application, but in fairness to the applicant and the sponsor, the Tribunal has dealt with the submissions in relation to the applicant’s skills qualifications and experience required by cl. 457.223 (4) (da) as below.

    Skills, qualification and employment background of the applicant

35. 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 this case the nominated occupation is supply and distribution manager.

36. The ANZSCO description of the role is as follows:

    SUPPLY AND DISTRIBUTION MANAGERS plan, organise, direct, control and coordinate the supply, storage and distribution of goods produced by organisations.

    Indicative Skill Level:
    In Australia and New Zealand:

    Most occupations in this unit group have a level of skill commensurate with a bachelor degree or higher qualification. At least five years of relevant experience may substitute for the formal qualification. In some instances relevant experience and/or on-the-job training may be required in addition to the formal qualification (ANZSCO Skill Level 1).

    
    Tasks Include:

    odetermining, implementing and monitoring purchasing, storage and distribution strategies, policies and plans

    opreparing and implementing plans to maintain required stock levels at minimum cost

    onegotiating contracts with suppliers to meet quality, cost and delivery requirements

    omonitoring and reviewing storage and inventory systems to meet supply requirements and control stock levels

    ooperating recording systems to track all movements of supplies and finished goods, and ensuring re-ordering and re-stocking at optimal times

    oliaising with other departments and customers concerning requirements for outward goods and associated forwarding transportation

    ooverseeing the recording of purchase, storage and distribution transactions

    odirecting staff activities and monitoring their performance

37. The applicant has provided written evidence to support his skills from the proprietor of the sponsor[12], who observes that the applicant in his day-to-day tasks completes those described in the sponsor’s position description[13]. The majority of those tasks align with those outlined in ANZSCO, but with greater clarity and detail. Having discussed the matter with the applicant at the hearing, the Tribunal has no reason not to accept the applicant’s oral evidence, and finds that he is in fact performing the majority of the tasks as outlined in the sponsor’s description for those of a supply and distribution manager.

    [12] T case file at f 123

    [13] Ibid at f 117-123

38. Having regard to the applicant’s experience in a period now exceeding 5 years and the fact he holds a Bachelor degree, means the applicant has satisfied the criteria for the relevant skill level for the nominated occupation.

39. Taking into account the information provided by the representative and including the references for work already performed as attached to the submissions (referred to above) the Tribunal finds it is satisfied that the applicant meets the requirement of the subregulation for the necessary skills, qualifications and employment background that the Minister considers necessary to perform the tasks of the nominated occupation.

40. For these reasons the applicant satisfies the requirements of cl.457.223 (4)(da).

    Summary

41. As the applicant is not able to meet the threshold requirement of an approved nomination which has not ceased, and not being saved by the transition provisions in the Regulations which commenced on 18 March 2018, for the reasons set out above, and noting there is no discretion for the Tribunal to waive the regulatory requirements, the Tribunal must affirm the Department’s decision.

    Secondary applicant

42. Subclause 457.321 provides that the secondary applicant must be 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.

43. As the primary applicant is not the holder of a Subclass 457 visa, the Tribunal finds that the criterion is not met and the secondary applicant does not meet cl. 457.321.

    DECISION

44. 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

45. 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.