WONG (Migration)

[2018] AATA 4237

WONG (Migration) [2018] AATA 4237 (7 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ho Wong

CASE NUMBER:  1708389

DIBP REFERENCE(S):  BCC2016/2724940

MEMBER:Wan Shum

DATE:7 September 2018

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 07 September 2018 at 1:58pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – no approved nomination – decision under review affirmed

PRACTICE AND PROCEDURE – Judicial review of nomination – request to postpone Tribunal’s decision

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 457 visa on 17 August 2016.

3. 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 applies to sponsorship for employment in an occupation by a standard business sponsor. The standard business sponsor in this case is Maxma Transportation Pty Ltd, who applied for approval on 15 August 2016 for a Transport Company Manager. This is the stream which the applicant has made claims against. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The nomination was refused and, on 4 April 2017, the delegate refused to grant the visa on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. Both Maxma Transportation Pty Ltd and the applicant have sought review of the decisions to refuse the nomination and visa application respectively, and both were represented in relation to the review by the same registered migration agent.

6. The applicant appeared before the Tribunal on 1 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Lingzi Wang. The hearing for this matter was combined with the hearing in respect of the nomination.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a). This requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. The applicant was nominated by Maxma Transportation Pty Ltd (the nominator) in the occupation of Transport Company Manager. However, the Department refused to approve the nomination application on 10 February 2017.

10. On 16 August 2018, the Tribunal affirmed the decision not to approve the nomination made by the nominator in relation to the applicant. It thus appeared that there was no approved nomination relating to the applicant by a standard business sponsor.

11. The Tribunal wrote to the applicant on 17 August 2018 regarding its decision and stated that it appeared that the applicant did not meet the requirements of being the subject of an approved nomination.

    Request for adjournment

12. In response to the Tribunal’s letter, the applicant’s representative advised that Maxma Transportation Pty Ltd has sought judicial review of the associated nomination application. It was stated that they were of the view that the substantive issue in relation to whether the applicant meets the requirements of cl.457.223(4)(a) is undecided.

13. It was requested that the Tribunal postpone making a decision on the application before it pending the Federal Circuit Court’s determination of the application for judicial review of the refusal of the associated nomination application.

14. Further, it was contended that a decision by the Tribunal to affirm the decision under review would be legally unreasonable in the circumstances.

15. The Tribunal has considered whether the further time sought by an adjournment is appropriate in the circumstances. The only ground put forward is that the substantive issue in relation to whether the applicant meets the requirements of cl.457.223(4)(a) is undecided because of judicial review being sought in relation to the Tribunal’s decision on the nomination application. According to the copy of the court filing documents provided, the applicant contends that there is jurisdictional error in the Tribunal’s decision on the nomination regarding the validity of the legislative instruments. This argument was not put to the Tribunal when it was reviewing the nomination application. Rather, the applicant and his representative indicated that they were aware that the nominator did not meet the requirements for approval because of the inapplicability conditions (which are set out in the legislative instruments) and would be seeking Ministerial intervention. While the validity of the instruments is a matter for the Courts, it is not known what period of time might be involved in the judicial review process, noting that even following the FCC’s determination, there are higher Courts at which further appeals could be filed by either party to the proceedings. It is not possible to estimate when the appeal process might be finalised.

16. The Tribunal has considered the request to postpone making a decision in this review until the judicial review application pertaining to the nomination has been finalised. It notes that as a review on the merits has been undertaken by the Tribunal, the nomination application is considered to have been finally determined within the meaning of s.5 of the Act. As such, while the applicant now contends that the legislative instrument is not valid, the Tribunal does not consider that the substantive issue of whether there is an approved nomination is still undecided. It does not consider it appropriate in these circumstances to delay making its decision on the visa to await the determination of the FCC in respect of the nomination.

    Requirement for an approved nomination         

17. 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. There is no evidence before the Tribunal that there is such an approved nomination relating to the applicant. For these reasons the requirements of cl.457.223(4)(a) are not met.

18. Given this, 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

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

    Wan Shum
    Member