1502612 (Migration)

[2016] AATA 4317

1502612 (Migration) [2016] AATA 4317 (1 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr George Adam Smith
Mrs Nadine Smith
Mr Sydney William Smith
Miss Naomi Smith
Mr George Adam Smith

CASE NUMBER:  1502612

DIBP REFERENCE(S):  BCC2014/2998064

MEMBER:Antonio Dronjic

DATE:1 September 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 01 September 2016 at10:05am

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 10 November 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 2 February 2015 on the basis on the basis that cl.457.223(4)(da) was not met because the delegate was not satisfied that the first named applicant have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Landscape Gardener (ANZSCO 362213).

5. The applicants applied to the Tribunal on 14 May 2015 and provided a copy of the primary decision record with the application. The applicants were represented by a migration agent.

6. 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

7. 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.

8. On 16 August 2016, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the first named applicant to provide information in writing as to whether the first named applicant is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.

9. The invitation was sent to the applicants’ address provided in connection with the review and advised that, if the information was not provided in writing by 30 August 2016, and no extension of time has been granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The review applicants have not provided the information within the prescribed period or requested an extension of time to do so. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if review applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

11. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support their review application.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

13. The Tribunal considered whether, in the circumstances of this case, the evidence that the first named applicant meets the requirements of cl.457.223(4)(a), is likely to be forthcoming, whether the first named applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

14. With its acknowledgment letter of 23 February 2015, the tribunal invited the applicants to provide material or written arguments in support of their review applications. They have failed to do so.

15. On 16 August 2016, the tribunal wrote to the applicants under subsection 359(2) of the Act inviting them to provide information in writing that would confirm that the first named applicant meets the requirements of cl.457.223(4)(a). The applicants have failed to provide the requested information within the prescribed periods set for this purpose.

16. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 2 February 2015. The applicant submitted a copy of the primary decision record with the review application.

17. The Tribunal note that, if the applicants are not granted a temporary work visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for this visa once they find the new employer willing to sponsor and nominate the applicants for the position within their business.

18. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the primary applicant will provide information in writing as to whether he is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations. The Tribunal is not disposed to delay making a decision indefinitely.

19. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that the first named applicant meets the requirements of cl.457.223(4)(a).

20. Based on the evidence before it, the Tribunal is not satisfied that a nomination of an occupation in relation to the primary applicant has been approved under section 140GB of the Act or that the approval of the nomination has not ceased as provided for in regulation 2.75. Accordingly, the Tribunal finds that the primary applicant does not satisfy cl.457.223(4)(a).

21. 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.

22. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second, the third, the fourth and the fifth named applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an 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.

    DECISION

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

    Antonio Dronjic
    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.