1507528 (Migration)

[2016] AATA 3994

1507528 (Migration) [2016] AATA 3994 (15 June 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Phipps

CASE NUMBER:  1507528

DIBP REFERENCE(S):  BCC2015/115724

MEMBER:Dione Dimitriadis

DATE:15 June 2016

PLACE OF DECISION:  Sydney

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

Statement made on 15 June 2016 at 5:53pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 12 January 2015.

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 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 visa on 13 May 2015 on the basis that cl.457.223(4)(a) was not met because there was not an approved nomination of an occupation relating to the applicant by a standard business sponsor.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

7. The applicant applied for the visa on 12 January 2015 on the basis of his proposed employment with his sponsoring employer, Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust, in the occupation of Electrician (General).  

8. On 6 January 2015 Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust (the sponsor) applied to the Minister for Immigration for approval of a nomination of an occupation.

9. On 23 February 2015 a delegate for the Minister decided not to approve the application by the sponsor for approval of the nomination.

10. The sponsor applied to the Tribunal on 4 March 2015 for review of the delegate’s decision.

11. On 13 May 2015 a delegate for the Minister refused to grant the visa to the applicant. The applicant applied for review with the Tribunal on 2 June 2015.  

12. On 20 May 2016 the Tribunal affirmed the decision not to approve the nomination of an occupation by the sponsor.

13. On 26 May 2016 the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited him to comment on or respond to information which the Tribunal considers would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.  The Tribunal informed the applicant that the particulars of the information are:

    ·On 6 January 2015 Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust applied to the Minister for Immigration and Border Protection for approval of a nomination of an occupation. 

    ·On 23 February 2015 a delegate for the Minister decided to refuse to approve the application for approval of the nomination.

    ·Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust applied to the Tribunal on 4 March 2015 for review of the delegate’s decision.

    ·On 20 May 2016 the Tribunal affirmed the decision not to approve the nomination.

    ·Information in the Department’s records indicates that you are not nominated by an approved standard business sponsor.

14. The Tribunal informed the applicant that “this information is relevant to the review because it is a requirement of cl.457.223(4)(a) of the Migration Regulations 1994 that there is an approved nomination of an occupation in relation to [the applicant] and that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved and the approval of the nomination has not ceased.” The Tribunal informed the applicant that if the Tribunal finds that he does not satisfy cl.457.223(4)(a) the Tribunal will affirm the decision to refuse to grant him the visa.

15. The Tribunal also invited the applicant, pursuant to s.359 of the Act, to provide information to demonstrate that he is the subject of an approved business nomination which has not ceased as required by cl.457.223(4)(a). The Tribunal informed the applicant that this requirement must be met at the time the Tribunal makes its decision.

16. The invitation under s.359A of the Act was sent to the applicant at the last email address provided in connection with the review and advised that, if the comments or response were not provided in writing by 9 June 2016, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

17. The applicant has not provided the comments or response within the prescribed period and no extension has been granted.  In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments or response.

    Requirement for an approved nomination

18. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and the approval of the nomination has not ceased.

19. The application by the sponsor for approval of a nomination of an occupation was refused by a delegate for the Minister on 23 February 2015. On 20 May 2016 the Tribunal affirmed the decision not to approve the nomination of an occupation by Powerlinksolutions Pty Ltd ATF Powerlinksolutions Unit Trust in relation to the applicant.

20. The applicant did not respond to, or comment on, the information in the Tribunal’s letter of 26 May 2016. The applicant has not provided any evidence to the Tribunal to demonstrate that he meets the requirements of cl.457.223(4)(a). The applicant did not provide evidence to the Tribunal as to whether there was a current approved nomination by a standard business sponsor and the nomination has not ceased. The applicant has lost his entitlement to a hearing and the Tribunal therefore did not have the opportunity of questioning the applicant about the visa application.

21. There is no evidence before the Tribunal that there is an approved nomination in respect of the applicant by a standard business sponsor and the approval of the nomination has not ceased.  

22. There is no evidence before the Tribunal, at the time of decision, that there is a current approved nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act. The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a)(i) and therefore the applicant does not satisfy cl.457.223(4)(a).

23. As the applicant does not meet cl.457.223(4)(a), he is not entitled to the grant of a Subclass 457 visa.

24. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Dione Dimitriadis
    Senior 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.