Yi (Migration)

[2022] AATA 2427

Yi (Migration) [2022] AATA 2427 (15 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hu Yi
Ms Wenting Zhou

REPRESENTATIVE:  Ms Tina Clarke (MARN: 11172678)

CASE NUMBER:  1833835

HOME AFFAIRS REFERENCE(S):          BCC2017/3375318

MEMBER:Katie Malyon

DATE:15 June 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2022 at 4:04 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship stream – motor mechanic – subject of approved position nomination – refusal of related nomination application affirmed on review – sponsor’s reliance on now deregistered former agent – occupation on strategic skills list – COVID-19 restrictions and border closures – legislative amendments – new nomination application in progress – member of family unit – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65, 140GB, 351, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 October 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 15 September 2017. At the time the application was lodged, Class UC contained one subclass only: Subclass 457 Temporary Business Entry. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (Cth) (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 2 alternative 'streams' for the visa. One of these streams is contained in cl 457.223(4) of Schedule 2 to the Regulations which is set out in the Attachment to this decision.

3. In the present case, specific claims have been made against cl 457.223(4) of Schedule 2 to the Regulations which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims have been made in respect of the other stream in cl 457.223(2) of Schedule 2 to the Regulations, the Labour Agreement stream.

   Background

4. The delegate refused to grant the visas on 29 October 2018 on the basis that
   cl 457.223(4)(a) of Schedule 2 to the Regulations was not met because the nomination application made by Mr Yi’s sponsor, Panderia Pty Ltd T/A Vans West (the Company), for the position of Motor Mechanic (General) ANZSCO 321211 was not approved.  ASIC searches confirmed that the Company was formerly known as Li & Kang Distribution Pty Ltd T/A Vans West in the period 8 November 2010 to 30 January 2015.

5. On 24 February 2022, the Tribunal invited the applicants to attend the hearing on 6 April 2022.

6. The Tribunal also wrote to the applicants on 24 March 2022 pursuant to s 359A of the Act via their then representative, Mr Yun Wan Shin. The Tribunal also sent a copy of its letter direct to the applicants as it had become aware that Mr Shin was no longer registered as a migration agent with the Office of Migration Agents Registration Authority. In its
   s 359A letter, the Tribunal noted that the Company had applied for review of refusal of its nomination (Tribunal Case No. 1830326): however, on 19 August 2021 the Tribunal affirmed the decision to refuse the Company’s nomination.

7. Further, the Tribunal noted that one of the requirements for grant of a Subclass 457 visa is that a nomination of an occupation in relation to a visa applicant has been approved under s.140GB of the Act. The Tribunal also noted that the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations).  Following introduction of the Amending Regulations, a new application for approval of a nomination in support of grant of a Subclass 457 visa can no longer be made.

8. The Tribunal noted that it appeared that the primary visa applicant, Mr Yi, is not the subject of an approved nomination by a standard business sponsor as required by cl 457.223(4)(a) of Schedule 2 to the Regulations and, since 18 March 2018, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. The Tribunal observed that, if it relies on this information, it may find that Mr Yi is not the subject of an approved nomination and, therefore, he does not satisfy the requirements in cl 457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

9. The applicants were requested to provide the Tribunal with comments or a response to this information by 7 April 2022. In its letter, the Tribunal advised that, if their comments or response was not provided in writing by 7 April 2022 or, if a request had not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 30 March 2022, the Tribunal receive notice of the appointment of a new representative, Ms Tina Clarke of DIZ Global Education & Migration. The newly appointed representative requested that the hearing be postponed. The Tribunal treated the representative’s request as a response from the applicants to the Tribunal’s s 359A letter and agreed to the postponement request. It rescheduled the hearing for 5 May 2022. The Tribunal also provided a copy of the Tribunal’s s 359A letter to the newly appointed representative.

    Hearing– 5 May 2022

11. Mr Yi appeared before the Tribunal on behalf of the applicants on 5 May 2022 to give evidence and present arguments.  The Tribunal also received oral evidence from Mr Min Kang, Managing Director of the Company.  The hearing was conducted by way of teleconference given Mr Yi’s location in Perth and the Member’s location in Sydney.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Mr Yi used the interpreter from time to time.  The representative also attended the hearing.

12. The Tribunal summarised the content of its s 359A letter to which Mr Yi responded that he felt the outcome was unfair because he was aware that another Company employee had their visa application approved at the same time.

13. Mr Kang told the Tribunal that he had a lot of comments to make.  He said the Company is one of the biggest car dealers in Western Australia and that he totally relied on the Company former representative Mr Shin as he had no time to investigate what was involved in securing temporary residence for Mr Yi.  He added that the representative never told him that he was disqualified and it was only when the Company appointed the new representative that he established what had gone wrong.  Apparently, the former representative had incorrectly inserted the word Maintenance instead of Mechanic in the nomination.  Mr Kang added that the Company is extremely busy and currently in the process of hiring more than 6 employees.  He finds it difficult to compete with the Western Australian mining industry where businesses are prepared to pay over $200,000 to employ someone filling the role of Motor Mechanic. 

14. The Tribunal noted Mr Yi was barred by s 48 of the Act from applying for another visa whilst remaining onshore. The Tribunal acknowledged it had no discretion and must affirm the delegate’s decision given the changes to the 457 visa regime following introduction of the Amending Regulations. It noted it only has discretion related to whether it should refer the matter to the Minister pursuant to s 351 of the Act. Mr Yi indicated he was unfamiliar with the Tribunal’s comments in this regard and that he would discuss the matter further with his representative. The Tribunal agreed to schedule a further hearing to take evidence in this regard.

15. After the hearing, the representative provided evidence of Mr Yi’s payslips issued by the Company in the period 31 July 2017 to 4 April 2022 as well as his superannuation for this period.  In addition, evidence was provided of the Chinese passport of the applicants’ 2½-year-old son, Ziuan Hu, born [Date] in Perth.  The Tribunal notes that Mr Yi’s payslips confirm that his current salary is $62,400 per annum plus superannuation. 

16. The representative also provides a detailed submission in which she confirms Mr Kang’s evidence at the hearing that communication from the former agent was very poor.  She submits that it may be inferred the former representative was in breach of duties under the Migration Agent’s Code of Conduct in relation to instructions from the Company which directly led to refusal of the applicants’ Subclass 457 visa application.  The representative acknowledges that the Company and the applicants are aware that the applicants cannot be granted a Subclass 457 visa without an approved nomination.  However, she notes that the occupation of Motor Mechanic (General) ANZSCO 321211 continues to remain on the Medium and Long-Term Strategic Skills List for a Subclass 482 visa.

    Hearing - 17 May 2022

17. Mr Yi and Mr Kang appeared before the Tribunal to give further evidence and present arguments. The hearing was conducted by way of MS Teams videoconference.  The Tribunal’s hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  Mr Yi used the interpreter from time to time.  The representative also attended the hearing.

18. Mr Kang told the Tribunal that the Company was in the process of preparing a new application nominating Mr Yi for a Subclass 482 visa.  He explained that the Company has grown tenfold to more than $5 million and now employs more than 10 people.  Mr Kang added that in Western Australia nearly all mechanics work in the mines and so there is a huge shortage of mechanics.  Apart from this, Mr Yi is fluent in Japanese and can deal directly with the Company’s Japanese vehicle suppliers. 

19. The Tribunal referred to the impact of s 48 of the Act on Mr Yi’s inability to lodge a Subclass 482 visa whilst remaining in Australia. It noted that, with Australia’s borders opening, the opportunity to travel overseas to lodge a Subclass 482 visa may be possible. Mr Kang told the Tribunal that Mr Yi is just so valuable that even losing him for a couple of days would have adverse consequences for the business. The Tribunal invited Mr Yi and Mr Kang to provide the Tribunal with documentation for it to consider whether it is an appropriate case to refer to the Minister.

    Documentation lodged after the hearing

20. After the hearing, the representative provided a submission for consideration by the Tribunal to recommend Ministerial intervention in this case.  The representative also provided further copies of documentation submitted after the hearing held on 5 May 2022 as well as additional documentation in relation to the Company, Mr Yi’s tax returns from 2017 to 2021, Australian Federal Police reports for the applicants as well as a number of photographs of Mr Yi and his family in the community. 

21. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. Having regard to available evidence, the Tribunal has decided, on balance, to refer the matter to the Minister pursuant to s 351 for the reasons set out below.

    CONSIDERATION OF CLAIMS AND EVIDENCE

22. The issue in this case is whether Mr Yi meets the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

23. 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.

24. As noted above, on 24 March 2022 the Tribunal wrote to the applicants pursuant to s.359A of the Act with details of information that is adverse to their review application. The Tribunal stated that on 19 August 2021 it had affirmed the delegate’s decision to refuse the Company’s nomination of the primary applicant Mr Yi for the position of Motor Mechanic (General) ANZSCO 321211. It also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. Further, it observed that, having reviewed Departmental records, there is no evidence before the Tribunal which confirms there is any approved or pending nomination relating to him.

25. Having regard to available evidence including Mr Yi’s express acknowledgement at the hearing, the Tribunal finds that there is no approved nomination of an occupation relating to him by an approved standard business sponsor that has not ceased. As such, the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations are not met.

26. For the reasons outlined 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 stream in cl 457.223 of Schedule 2 to the Regulations, the Labour Agreement stream, and there is no evidence that Mr Yi would be able to satisfy the specific criteria for that stream.

27. Accordingly, the Tribunal must affirm the delegate’s decision not to grant Mr Yi a Temporary Business Entry (Class UC) visa.

28. The application of the second named applicant is based on her being a member of the family unit of a person who meets the primary criteria. As Mr Yi does not meet the primary criteria, the other applicant does not meet the criteria for grant of the visa. Accordingly, the Department’s decision to refuse the application of the second named applicant must also be affirmed.

    Is this an appropriate case to refer to the Minister?

29. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal a decision that is more favourable to the applicant if the Minister thinks it is in the public interest to do so.

30. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for the consideration of the possible exercise of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power after the Tribunal has made its decision, regardless of whether the Minister is requested to do so by the applicant, or any other person, or in any other circumstances.

31. Guidelines have been issued explaining the circumstances in which the Minister may wish to consider exercising the public interest powers under s.351 of the Act.[1]  The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances.  The circumstances which, according to the Minister’s Guidelines, may be unique or exceptional include, relevantly, where:

    ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia

    ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case (emphasis added).

    [1] Available at >

    The Tribunal takes the issue of recommending referral of any case to the Minister seriously and only after very careful consideration of the matters raised by an applicant for a visa having regard to the Minister’s Guidelines on Ministerial Powers.  It reflects that the theme running throughout the Minister’s Guidelines is that the case should involve unique or exceptional circumstances.  The Guidelines also indicates cases where it would be inappropriate to bring a matter to the Minister’s attention. 

32. The Tribunal has had regard to information submitted by the representative, in particular:

    ·submissions regarding the former and now deregistered representative’s evidently deficient conduct in terms of its engagement with the Company which directly led to refusal of its nomination and then the Tribunal affirming this decision for failure to respond to the Tribunal’s request to provide current and updated information about the business of the Company and the nominated occupation;

    ·the fact that the nominated occupation of Motor Mechanic (General) ANZSCO 321211 continues to remain on the Medium and Long-Term Strategic Skills List for a Subclass 482 visa and the Western Australia Skilled Migration Occupation List;[2]  

    ·difficulties in the period from March 2020 until just recently impacting the ability of Mr Yi and his family, due to the COVID-19 pandemic and consequent closure of the Australian borders, leaving Australia and lodging a Subclass 482 visa application offshore nominated by the Company given the fact that Mr Yi is barred by s 48 of the Act from lodging such an application on shore – the inflexibility of the Regulations have been recognised by the Government in a suite of amendments to the Regulations;[3] and,

    ·Mr Yi’s evident compliance with Australian laws including taxation laws by consistent lodgement of his tax returns.

    [2] migration.wa.gov.au/services/skilled-migration -western-australia/occupation%20lists

    [3] By way of example, the Government introduced the Migration Amendment (2021 Measures No. 1) Regulations 2021 (the 2021 Amending Measures Regulations) to amend the Regulations effective 27 February 2021. The Amending Measures Regulations facilitate, inter-alia, onshore grants of Subclasses 101 (Child), 102 (Adoption), 124 (Distinguished Talent), 300 (Prospective Marriage), 309 (Partner (Provisional)) and 444 (Dependent Child) visas. Prior to the introduction of these amendments, it was necessary for the grant of these visas that the applicant be offshore. The Explanatory Statement accompanying the 2021 Amending Measures Regulations confirms the instrument makes amendments, inter-alia, to assist certain visa applicants and holders ‘adversely impacted by COVID-19’. In addition to the 2021 Amending Measures Regulations, the other regulatory changes include the: Migration Amendment (COVID-19 Concessions) Regulations 2020 which includes amendments to assist certain temporary and provisional visa holders, including individuals who are on a pathway to permanent residence, who are disadvantaged by the consequences of the COVID-19 pandemic;  Home Affairs Legislation Amendment (2020 Measures No. 2) Regulations 2020 which provides concessions to certain applicants for Working Holiday visas, restructures and streamlines Distinguished Talent visas and amendments consequential to the Migration Amendment (COVID-19 Concessions) Regulations 2020 for skilled visas; and,   Migration Amendment (Temporary Graduate Visas) Regulations 2020 which, inter alia, clarify the operation of the concession inserted by the Migration Amendment (COVID-19 Concessions) Regulations 2020 by allowing applicants for Subclass 485 visas to be made from outside Australia during the concession period associated with the COVID-19 pandemic.

33. Having carefully considered the circumstances of this case, the Tribunal will refer the matter to the Minister.  Mr Yi and the Company may wish to lodge further evidence with the Department addressing the appropriateness referring this matter to the Minister.  This may include a fully-documented decision-ready nomination application and a favourable skills assessment for Mr Yi from Trades Recognition Australia for the occupation of Motor Mechanic (General) ANZSCO 321211.  The Tribunal will forward to the Department information submitted by the representative in support of the referral of this matter to the Minister. 

    DECISION

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

   Katie Malyon

   
   Member

   ATTACHMENT - Extracts from the Migration Regulations 1994

   Schedule 2 Part 457

   …

   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.

   oOOo