1411167 (Migration)

[2015] AATA 3363

1411167 (Migration) [2015] AATA 3363 (2 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ying Li
Mr Xuedong Chen

CASE NUMBER:  1411167

DIBP REFERENCE(S):  BCC2014/369324

MEMBER:Mary-Ann Cooper

DATE:2 September 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 02 September 2015 at 5:04pm

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 7 February 2014.

3. 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.

4. The delegate refused to grant the visas on 6 June 2014 on the basis that cl.457.223(4)(a) was not met because the nominating employer was not an approved standard business sponsor and there was therefore no approved nomination in respect of the applicant made by a person who was a standard business sponsor.

5. In a separate decision, on 22 May 2015, the Tribunal had set aside the decision not to approve the applicant’s nominating employer’s sponsorship approval application and substituted a decision that approved it as a standard business sponsor.

6. Consequently, on 26 May 2015 the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting them to provide information in writing that demonstrated that the applicant was the subject of an approved nomination by a standard business sponsor. The applicants responded on 18 June 2015 advising that an application for nomination approval had been made in respect of the first named applicant (the applicant) and attaching a copy of the application made to the Department on 16 June 2015.

7. The applicant appeared before the Tribunal on 27 August 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicants were represented in relation to the review by their registered migration agent who also attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

11. 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.

12. As noted above, the Tribunal had earlier approved the nominating employer as a standard business sponsor however at that stage there was no approved nomination of an occupation in respect of the applicant.

13. At the hearing the Tribunal asked the applicant about the progress of the nomination application. She responded that she was waiting for the Department’s decision. The Tribunal noted that it had been over two months since its decision on the sponsorship application and it could not indefinitely delay its decision. It also noted that the nomination approval application had not been made until 16 June 2015. It allowed the applicant a further short period of time within which to provided evidence of an approved nomination.

14. On 31 August the applicant’s representative delivered information to the Tribunal including:

    ·     The decisions of the Federal Circuit Court in Kandel v Minister for Immigration [2015] FCCA 2013 and Minister for Immigration and Citizenship v Islam [2012] FCA 195.

    ·     A copy of the application for the nomination approval on 16 June 2015.

    ·     A copy of the employment agreement between the nominating employer and the applicant dated 6 July 2015.

15. In attached correspondence, the applicant’s representative submitted that the two court decisions were relevant to whether the Tribunal had jurisdiction in the matter.

16. The Tribunal acknowledges it has jurisdiction in this matter on the basis that the delegate’s decision is reviewable under s.338(2)(d)(ii). That is, at the time of the applicant’s review application, an application for review of the Department’s decision not to approve the nominating employer as a sponsor had also been made and was before the Tribunal. This is the decision referred to in paragraph 5 above.

17. As noted above, the issue before the Tribunal is whether the applicant is the subject of an approved nomination as required by cl.457.223(4)(a).

18. The Tribunal has considered whether it should wait some further time for the decision of the Department in relation to the new nomination application. In considering whether it would be appropriate for it to exercise its discretion in this manner, the Tribunal has had regard to the decisions 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 have held that the Tribunal is not required to indefinitely defer its decision making processes. On the subject of delay, the Tribunal has also had regard to remarks made by the High Court of Australia when considering the Tribunal’s discretion in relation to adjournments: MIAC v Li [2013] HCA 18. The Court discussed a range of factors that should be considered. Among other things the Court said that “it may be accepted that the Tribunal is to act with some efficiency” (per Hayne, Kiefel and Bell JJ. at [80]); and that the Tribunal “is entitled to have regard to legislative objectives including timeliness in its processes” (per French CJ. at [10])).

19. Accordingly, in the circumstances of this particular case, noting that there has been no specific request from the applicant in this regard, and there is no indication from the applicant or the Department as to a likely time line for its decision on the nomination application, the Tribunal does not consider it appropriate to postpone its decision making any further and has proceeded to finalise the application on the bias of the information before it.

20. Based on the information before it, the Tribunal finds that at the time of its decision there is no approved nomination of an occupation by any standard business sponsor in relation to the applicant that has been approved under section 140GB of the Act.

21. The Tribunal therefore finds that the applicant does not meet the requirements of cl.457.223(4)(a)(i) of Schedule 2 to the Regulations at the time of its decision and, therefore, she does not satisfy paragraph 457.223(4)(a). It follows that the Tribunal finds that the review applicant does not meet the requirements of cl.457.223(4) of Schedule 2 to the Regulations.

    CONCLUSION

22. 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.

    Secondary applicant

23. The delegate also refused a visa to the secondary applicant, the partner of the visa applicant and who is included in her application.

24. There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 457.321, 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. As the applicant does not satisfy the primary criteria for a subclass 457 visa, or any other subclass, the Tribunal finds that the secondary applicant also does not satisfy clause 457.321 and, therefore, the criteria for a subclass 885 visas, or any other subclass.

    DECISION

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

    Mary-Ann Cooper
    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

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    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.