Truong (Migration) - [2019] AATA 4567

Truong (Migration) [2019] AATA 4567 (23 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Huu Thanh Truong
CASE NUMBER:  1602460
DIBP REFERENCE(S):  BCC2015/2809814
MEMBER:Alison Mercer
DATE:23 October 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 23 October 2019 at 11:06am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – failure to attend rescheduled hearing – insufficient medical information – subject of an approved nomination – nomination application refused – pending judicial review application – likely timeframe for resolution – Tribunal declined indefinite adjournment of decision – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223
CASES
Chen v Minister for Immigration and Border Protection [2016] FCCA 2351
Ferdous v Minister for Home Affairs [2019] FCCA 1862
Gong v Minister for Immigration and Border Protection [2016] FCCA 561
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 25 September 2015.
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 visa on 9 February 2016 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by an approved standard business sponsor (SBS). The delegate noted that the applicant was nominated in the occupation of Customer Service Manager by his proposed employer, JN & Co Pty Ltd. The delegate further noted that the first nomination was refused, and that a second one, lodged on 13 November 2015, was refused on 9 February 2016.
The Tribunal received a review application from the applicant on 26 February 2016. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Adewale Oladejo, as his representative and authorised recipient for correspondence.
The matter was constituted to a Tribunal Member on 22 August 2019. On 30 August 2019, the Tribunal wrote to the applicant via his agent to invite the applicant to attend a hearing on 20 September 2019. He was requested to provide any submissions and/or documents in support of his case 1 week prior to the hearing.
On 5 September 2019, the Tribunal received a request to reschedule the hearing as the agent would be overseas until 21 September 2019. On 9 September 2019, the Tribunal advised the applicant and agent that the hearing had been rescheduled to 3 October 2019.
On 1 October 2019, the applicant’s agent indicated that he and the applicant would attend the hearing, and that they would provide details of witnesses that they wished the Tribunal to hear from.
On 2 October 2019, the applicant’s agent provided a medical certificate for the applicant dated 2 October 2019 stating that the applicant was suffering from a medical condition and was unfit for a case hearing from 2 to 3 October 2019. He asked that the hearing be rescheduled.
On 3 October 2019, the Tribunal wrote to the applicant via his agent to advise that the hearing had been rescheduled to 8 October 2019. The Tribunal also advised that no further hearing rescheduling would occur in the absence of a medical certificate clearly stating that the applicant was unable to attend a hearing, in person or by telephone, with an estimated duration of 45 minutes. The applicant was also asked to provide written submissions and/or documents in support of the case prior to the hearing.
On 8 October 2019, the applicant’s agent provided a hearing response indicating that he and the applicant would attend the hearing. However, at the commencement of the hearing, the applicant was not present. On the instructions of the Presiding Member, a Tribunal officer attempted to contact the applicant but was unable to do so. His agent then spoke to the applicant by mobile phone, who advised the agent that he was unwell.
Following the hearing time, the Tribunal wrote to the applicant via his agent to advise that as the applicant had not attended the hearing, the Tribunal would proceed to make its decision on the available evidence without scheduling another hearing, noting that it had already rescheduled the hearing at their request twice). The Tribunal asked that any material that they wished to have considered be provided to the Tribunal by 11 October 2019. The Tribunal’s letter was transmitted by email.
On 9 October 2019, the Tribunal received a copy of another medical certificate for the applicant, dated 8 October 2019, from the applicant’s agent. The agent said that the applicant apologised for not attending the hearing. The medical certificate states that the applicant is suffering from a medical condition and will be unfit to follow his daily occupation on 8 October 2019.
On the same date, the Tribunal wrote to the applicant via his agent via email to acknowledge that the Presiding Member had received the medical certificate of 8 October 2019 but noted that it did not contain the specific information set out in the hearing invitation letter dated 3 October 2019. The letter stated that given this, the Presiding Member declined to schedule another hearing and reiterated that any submissions that the applicant and his agent wished to have considered, particularly as to whether the applicant had an approved nomination by an approved standard business sponsor, as required by cl.457.223(4)(a), be provided by close of business on 11 October 2019.
On 11 October 2019, the applicant’s agent provided submissions as follows:
· the applicant’s employer, JN & Co Pty Ltd, had an active and valid sponsorship approval for the period 25 January 2016 to 25 January 2021, proof of which had been provided; and
· JN & Co Pty Ltd had a pending judicial review application with the Federal Circuit Court of Australia in relation to a decision by the Tribunal made on 23 February 2018 to affirm the refusal of its nomination of the applicant for a subclass 457 visa. The judicial review application was lodged on 22 March 2018.
On 14 October 2019, the Tribunal wrote again to the applicant via his agent to request that he provide an estimated time for resolution of the judicial review application, and/or any arguments on his behalf and/or his employer’s behalf as to why the Tribunal should defer making its decision in the absence of an approved nomination by an approved standard business sponsor. The Tribunal requested that this be provided by close of business on 17 October 2019.
The Tribunal did not receive a response from the applicant or his agent by 17 October 2019, and has received no further information from them to date.
Under the circumstances, the Tribunal has proceeded to make its decision on the available evidence, without scheduling another hearing or making a further request for submissions, as it is entitled to do pursuant tos.362B(1A)(a) of the Act.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Requirement for an approved nomination
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.
The Tribunal is satisfied that JN & Co Pty Ltd is an approved standard business sponsor, and that its sponsorship approval is valid until 25 January 2021.
However, as set out in the delegate’s decision (a copy of which was provided to the Tribunal by the applicant), its nomination of the applicant for a subclass 457 visa was refused on 9 February 2016, and a second nomination made on 2 February 2016 was refused by the Department on 6 August 2016. Both nominations were for the position of Customer Service Manager. JN & Co Pty Ltd lodged an application for review of the first nomination refusal decision with the Tribunal on 26 February 2016 and the Tribunal affirmed the decision to refuse the nomination on 23 February 2018. JN & Co Pty Ltd sought judicial review of that decision with the Federal Circuit Court of Australia on 22 March 2018, and the review application is pending with the Court.
Therefore, as it stands at the time of the Tribunal’s consideration (October 2019), there is no approved nomination of the applicant by JN & Co Pty Ltd (or any other approved standard business sponsor).
Moreover, the Tribunal notes that legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from JN & Co Pty Ltd (or another employer), even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined.
Therefore, the Tribunal acknowledges that the only way in which the applicant could meet cl.457.223(4)(a) is if JN & Co Pty Ltd’s judicial review application of 22 March 2018 is successful, and the decision to affirm the refusal of its nomination of the applicant as a Customer Service Manager is remitted back to the Tribunal for reconsideration according to law, and the outcome of any such reconsideration is that the Tribunal sets aside the Department’s decision to refuse to approve the nomination and substitutes a decision to approve the nomination.
The Tribunal has therefore considered whether it is reasonable to defer its decision to await the outcome of the judicial review application by JN & Co Pty Ltd, noting that it has not been provided with any evidence as to the likely timeframe for resolution of the judicial review application by the applicant or his agent.
In doing so, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes to enable an applicant to try to meet the relevant visa criteria. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application was known.
The Tribunal has also had regard to a recent Federal Circuit Court judgment in Ferdous v Minister for Home Affairs [2019] FCCA 1862, in which Driver J held that the Tribunal’s failure to await the outcome of the applicant’s criminal proceedings before making a decision to cancel his visa pursuant to s.116(1)(e) of the Act (which provides that Minister may cancel if satisfied that the presence of the visa holder in Australia is, or may be, or might be or would be, a risk to the health, safety or good order of the Australian community, or a segment of it, and/or to the health or safety of an individual or individuals) was legally unreasonable and thus constituted a jurisdictional error. However, the Tribunal notes that in another decision of the Federal Circuit Court, Gong v Minister for Immigration and Border Protection [2016] FCCA 561, Smith J held that it was open to the Tribunal to affirm a cancellation under s.116(1)(e) where charges were pending, but not yet determined, in respect of the applicant (although the Tribunal’s decision was set aside for other errors of law amounting to jurisdictional error). The Tribunal therefore considers that the authority on this issue is conflicting, and moreover notes that neither of these cases relates to the specific circumstances of the applicant, or to an applicant’s ability to satisfy cl.457.223(4)(a) generally.
Having had regard to the above case law, and to the circumstances of the applicant in this case, the Tribunal does not consider it reasonable to defer making its decision further in this case. In reaching this conclusion, the Tribunal gives weight to the fact that the outcome of the Federal Circuit Court judicial review application by JN & Co Pty Ltd does not appear imminent, nor is there any strong or clear indication that it will be successful. Moreover, there is no indication that, even if the nomination application were to be remitted back to the Tribunal for reconsideration, that reconsideration would be successful, noting that in order to set aside a nomination refusal and substitute its own decision to approve a nomination, the Tribunal must be satisfied that all the relevant criteria in r.2.72 (as it was at the time the nomination application was made) are met, not merely the criterion that was in dispute before the delegate and previous Tribunal. Given the uncertainty attending the issue of when, or even if, the applicant will be the subject of an approved nomination by JN & Co Pty Ltd, the Tribunal does not consider it reasonable to defer its decision for a further period.
There is no evidence that the applicant meets cl.457.223(4)(a) as he is not the subject of an approved nomination by an approved standard business sponsor.
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
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Alison Mercer
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.