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…

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: [2019] AATA 4567
Decision Date: 23 October 2019

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457. The applicant, Mr. Truong, sought review of a decision not to grant him this visa. The Tribunal was required to determine whether the applicant met the criteria for the visa, specifically focusing on the requirement for an approved nomination by a standard business sponsor.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 457.223(4)(a) of the Migration Regulations, which mandates an approved nomination for the occupation by a standard business sponsor that has not ceased. This requirement was complicated by the fact that the applicant's employer, JN & Co Pty Ltd, had its nominations for Mr. Truong refused, and a subsequent application for judicial review of one of those refusals was still pending before the Federal Circuit Court. Furthermore, legislative amendments had repealed the subclass 457 visa and introduced new criteria for its replacement, the subclass 482 visa, impacting the validity of any future nominations for a subclass 457 visa.

The Tribunal reasoned that as of October 2019, there was no currently approved nomination for Mr. Truong. It noted that the judicial review application, even if successful, would likely result in the matter being remitted for reconsideration, not an automatic approval. Crucially, the Tribunal observed that amendments effective from 18 March 2018 meant that any new nomination lodged after that date could only support a subclass 482 visa application or applications by existing subclass 482 or 457 visa holders, neither of which applied to Mr. Truong's situation. Therefore, the Tribunal concluded that the only pathway to satisfy clause 457.223(4)(a) would be a successful judicial review leading to a remitted reconsideration and a subsequent approval of the nomination.

Ultimately, the Tribunal found that the requirements for the standard business sponsor stream had not been met. As no claims were made in respect of other visa streams and there was no evidence of the applicant being able to satisfy those criteria, the Tribunal affirmed the decision not to grant the visa.

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 EVIDENCERequirement 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.

Decision

Reasons for decision

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 MercerMemberATTACHMENT - 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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