Taverniti (Migration)

[2017] AATA 1885

Taverniti (Migration) [2017] AATA 1885 (11 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Nicola Taverniti
Ms Angela Tuttavilla
Miss Nicole Taverniti
Miss Noemi Taverniti

CASE NUMBER:  1710366

DIBP REFERENCE(S):  BCC2016/1125860

MEMBER:Christopher Smolicz

DATE:11 October 2017

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 11 October 2017 at 9:27am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Approved nomination of an occupation by a standard business sponsor – Error in the nomination application – No legislative provision allowing information to be amended – Jurisdiction finding – No entitlement to a hearing

LEGISLATION

Migration Act 1958, ss 29, 65, 140E, 140GB, 338, 347, 359(2), 411, 412

Migration Regulation 1994, r 2.72, r 2.73, r 4.02(4), Schedule 2, cl 457.223, cl 457.321

CASES

Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182
Yang v MIAC [2010] FMCA 890
Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. An application has been lodged for review of a decision of a delegate of the Minister for Immigration, dated 24 April 2017, to refuse to grant Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). This decision is reviewable under s.338(2) of the Act.

2. The review application was lodged with the Tribunal on 15 May 2017.

   Does the Tribunal have jurisdiction to hear the application?

3. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (the Act) if an application is properly made under s.347 or s.412 of that Act, or in limited circumstances not relevant to this application, s.29 of the Administrative Appeals Tribunal Act 1975. Sections 338 and 411 of the Act and r.4.02(4) of the Migration Regulations 1994 set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable.

4. Section 338(2)(d) is the provision enabling jurisdiction for onshore applicants seeking review of subclass 457 visa refusals. Relevantly, section 338(2)(d) provides:

   (d)      where it is a criterion for the grant of the visa that the non-citizen is sponsored by an approved sponsor, and the visa is a temporary visa of a kind (however described) prescribed for the purposes of this paragraph:

   (i)      the non-citizen is sponsored by an approved sponsor at the time the application to review the decision to refuse to grant the visa is made; or

   (ii)      an application for review of a decision not to approve the sponsor has been made, but, at the time the application to review the decision to refuse to grant the visa is made, review of the sponsorship decision is pending.

5. On 16 December 2015, the Full Federal Court handed down its decision in Ahmad v Minister for Immigration and Border Protection [2015] FCAFC 182. The effect of this decision is that the Tribunal only has jurisdiction to conduct a review of decisions to refuse subclass 457 visas to applicants seeking to meet primary criteria applying inside Australia in the following circumstances:

   ·under s.338(2)(d)(i):

   where, at the time the review application is lodged, the visa applicant is identified in an approved nomination made by a standard business sponsor, or

   where, at the time the review application is lodged, the visa applicant is identified in a nomination application which has not yet been decided by the Department;

   ·under s.338(2)(d)(ii) – where, at the time the review application is lodged, the employer seeking to nominate the visa applicant has an application for review pending before this Tribunal, either:

   in relation to a decision to refuse the employer the status of standard business sponsor, or

   in relation to a decision to refuse the standard business sponsor an application for approval of a nomination application relating to the visa applicant.

6. Movement records of the Department indicate that the primary applicant was within the migration zone when the visa application was lodged and was not in immigration clearance or had been refused immigration clearance.

7. A subclass 457 visa is capable of being granted to an applicant onshore. The jurisdictional provisions of s.338(a), (b) and (c) accordingly apply to the applicant. The applicant is therefore required to meet s.338(2)(d) in order for the Tribunal’s jurisdiction to be engaged.

8. On 26 May 2017, the Tribunal wrote to the applicants via their agent to invite them to comment on its preliminary view that the review application was not valid because, at the time it was lodged, the primary applicant was not identified in a nomination under s.140GB of the Act that was approved or that was pending with the Department, and nor was there any pending application for review before the Tribunal of either a decision not to approve the primary applicant’s sponsoring employer under s.140E of the Act, or a decision not to approve its nomination of him under s.140GB of the Act.

9. The applicant’s migration agent responded to the Tribunal’s letter. The agent advised that he has been dealing with Department regarding an error which was present in the nomination application lodged with the Department. The agent submitted that there is enough evidence to prove that there is a valid nomination pending for the applicant. The agent referred the Tribunal to email communication with the Department and claimed it supported his application.

   Chronology of events

10. On 15 March 2016 the applicant applied for a 457 visa which is the subject of the current review application. The applicant nominated No.Ni Construction Pty Ltd as his sponsoring employer.

11. On 16 November 2016 the Department refused the nomination application made by No.Ni Construction. (The Tribunal also notes that on 14 December 2016 a further nomination was lodged and it was also refused by the Department on 24 March 2017.)

12. On 21 April 2017 the applicant’s agent emailed the Department and advised that the applicant had found a new employer (Ollie Holdings Pty Ltd) who lodged a new nomination application. (The Tribunal notes that nomination application incorrectly listed James Frederick Hinge (the Director of Ollie Holdings) as the nominee.) The agent requested that the Department link the applicant’s visa application to the new nomination.

13. The agent emailed the Department and claimed that on 21 April 2017 a new nomination was lodged with a new employer. He claims there was a jurisdictional error because the director’s name was incorrectly listed instead of the nominee. He claims the Department was responsible for the error.

14. On 24 April 2017 the applicant’s 457 visa application lodged on 15 March 2016, which is subject of this review application, was refused because the sponsoring employer (No.Ni Construction Pty Ltd) did not have an approved nomination in place.

15. On 15 May 2017 the agent lodged a “Notification of Incorrect Answer” [Form 1023] with the Department. The agent claimed that nominee was incorrectly detailed [James F Hinge] in the nomination when it should have been Nicola Taverniti (visa primary applicant). The agent claimed a jurisdictional error had occurred and the Department had incorrectly typed in the name of the director instead of the nominee visa applicant.

16. Also On 15 May 2017 the visa applicant applied to the Tribunal to review the Department’s decision refusing his 457 visa application.

17. On 30 May 2017 the Department advised the applicant that it had checked its electronic records regarding the nomination application which confirm that the agent listed the nominee as “James Frederick Hinge”. The Department acknowledged that the agent had submitted a Form 1023, however the Departmental officer confirmed that the nominee’s details cannot be changed once the application is submitted.

18. The agent acknowledged that the nominee’s name was incorrect but claimed that the passport details and family details were of the nominee (Mr Taverniti).

19. On 7 June 2017 the agent lodged a new nomination with the correct details identifying Ollie Holdings Pty Ltd, as the sponsoring employer and Mr Nicola Taverniti as the nominee.

20. In its communication with the agent on 31 May 2017,the Department referred the agent to the following Department’s Procedural Advice Manual Guidelines (PAM3) and advised that it cannot amend the nominee’s details:

    4.5.3. Nominee must be identified

    Under regulation 2.72(5), sponsors must identify the nominee (that is, the proposed 457 visa primary applicant who will work for the sponsor).

    The nomination form requires sponsors to provide the following minimum identity information regarding the nominee so that the sponsor meets this requirement:

    ·The nominee’s full name, date of birth and gender

    ….

    There is no legislative provision allowing this information to be amended. If there is a need to change the nominated person the applicant must withdraw the original nomination application and lodge a new one with the correct information.

    Jurisdiction findings

21. The relevant subregulation in this case is r.2.73(4A) (which deals with the process for making a nomination), rather than r.2.72(5) (which is the time of decision criteria for approving a nomination).

22. Subregulation 2.73(4A) states that the applicant must provide as part of the nomination the information mentioned in sub regulations 2.72(5) and (8). The Department’s view in the PAM3 guidelines is that the information given as part of the nomination application cannot be changed because there is no legislative provision allowing the information to be changed. However, in the absence of judicial consideration, the words ‘as part of the nomination’ in r.2.73(4A) is open to two views:

    a)    The narrower view is that the wording suggests the information must be provided at the time the application for the nomination was made. This view facilitates the timely processing of nomination applications by ensuring they are ‘decision ready’ at the time they are made and penalises those who might fail to provide critical evidence at the earliest stage.

    b)    However, unlike most schedule 2 visa criteria which are divided into time of application and time of decision, the approval of a nomination under r.2.73 is to be decided at the time of decision only. Accordingly, a broad view that treats the nomination as a continuum (beginning with lodgement and ending with decision) also appears open. The Tribunal finds that view is more beneficial to an applicant and would generally allow for the best decision to be made on a nomination application by ensuring any relevant or up to date information was capable of being considered.

23. As the applicant’s representative clearly submitted that the nomination referring to the director of the company was in error (regardless of whose error it was), and attempted to rectify that error as soon as possible, the Tribunal finds that the better view is that the nomination was intended to refer to the review applicant.

24. Having considered the submissions, the Tribunal finds that the broad reading of r.2.73(4A) should be applied in this matter. The Tribunal finds that it does have jurisdiction in this case.

    Requirement for an approved nomination

25. In order for the applicant to meet the requirements of paragraph 457.223(4)(a) of the Regulations there must be an approved nomination of an occupation relating to him by a standard business sponsor that has not ceased.

26. On 7 September 2017 the Tribunal sent a letter to the applicants pursuant to s.359(2) of the Act. The letter informed the applicants that it had considered the submissions made by their agent and the Tribunal was of the view that it did have jurisdiction in the matter. The letter advised the applicants that issue before the Tribunal was whether the primary applicant meets the requirements of subclause 457.233(4) of the Regulations. Specifically, the letter requested information to demonstrate that the primary applicant is the subject of an approved business nomination which has not ceased as required by cl.457.223(4)(a).

27. On 20 September 2017 the applicant’s agent responded to the Tribunal’s letter and referred to the history of the matter detailed above. The agent stated that the nomination was still being processed by the department.

28. On 2 October 2017 the Tribunal contacted the agent and advised that Tribunal had considered his response and notes that he has not provided an approved nomination as requested by the Tribunal letter. The Tribunal advised the applicant’s agent that as a consequence they have lost their right to a hearing and the member would proceed to make a decision in the mater. The agent submitted that he would make further submissions by the end of the day.

29. The agent subsequently contacted the Tribunal and requested the Tribunal postpone making a decision in the matter and wait for the outcome of the nomination.

30. The Tribunal acknowledges that the applicant has responded to the invitation within the prescribed period, however the Tribunal finds the applicant has not provided the particular information requested. The Tribunal notes that section 359(2) of the Act states that the applicant must provide ‘the’ specific information which has been requested. The effect is that the applicant has no entitlement to a hearing and the Tribunal has proceeded to make a decision on the available evidence.[1]

    [1]Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [42]-[43].

31. In the circumstances the Tribunal has decided to proceed to make a decision in this matter. In making this decision the Tribunal has regard to the chronology of this matter and the fact that it has provided the applicant with an opportunity to provide evidence of an approved nomination. The Tribunal notes that the review application was lodged with the Tribunal over four months ago and the applicant applied for the visa in March 2016. It is currently unclear when or if the pending nomination application will be approved by the Department.

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

    Finding

33. In this case, and as set out in the primary decision record, the visa application was refused because there was no approved nomination in place for the applicant.

34. As a result, having regard to the evidence as a whole, the Tribunal finds that there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased at the time of its decision.

35. Therefore, the Tribunal finds that the applicant does not satisfy the requirements of paragraph 457.223(4)(a) at the time of its decision. Given this finding, it is unnecessary for the Tribunal to consider the issue of whether the applicant meets the remaining requirements for a subclass 457 visa.[2]

    [2]     The Court in Woo v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 1596 held that once the Tribunal has established that at least one essential criterion had not been satisfied, it was not obliged to make findings in relation to any other criteria.

36. To meet clause 457.321 the applicant’s spouse and their two children (the ‘secondary applicant’), must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.

37. As the applicant does not satisfy the primary criteria for a subclass 457 visa, the Tribunal finds that the secondary applicant also does not satisfy clause 457.321 and, therefore, the criteria for a subclass 457 visa.

38. 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

39. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Christopher Smolicz
    Member