1509816 (Migration)

[2016] AATA 4465

1509816 (Migration) [2016] AATA 4465 (30 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mahmudul Haq
Ms Mosammat Sultana Razia
Mr Mahbirul Haq

CASE NUMBER:  1509816

DIBP REFERENCE(S):  BCC2015/331763

MEMBER:Katie Malyon

DATE:30 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 30 September 2016 at 6:12 pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by 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 30 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 of Schedule 2 to the Regulations 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) of Schedule 2 to the Regulations which applies to sponsorship by a standard business sponsor for employment in an occupation. No claims have been made in respect of the other alternative streams in cl.457.223 of Schedule 2 to the Regulations.

4. The delegate refused to grant the visas on 1 July 2015 on the basis that cl.457.223(4)(a) of Schedule 2 to the Regulations was not met because the primary visa applicant, Mr Haq, was not nominated by an approved sponsor. The applicants provided a copy of the delegate’s decision record to the Tribunal with their review application.

5. Mr Haq appeared before the Tribunal on 30 September 2016 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

8. Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. Mr Haq was sponsored to work with A1 Hotel Group Pty Ltd (A1 Hotel Group) as a Hotel Manager at Batlow in regional New South Wales.  His most recent Subclass 457 visa ceased on 31 January 2015.  Mr Haq applied for a new Subclass 457 visa on 30 January 2015, again sponsored by A1 Hotel Group.  As noted above, the applicants provided a copy of the delegate’s decision to the Tribunal.  The decision notes that as Mr Haq’s prospective employer was not an approved business sponsor (its old sponsorship approval had ceased and its new sponsorship application was refused) and so the nomination application lodged by A1 Hotel Group was unable to be assessed.

10. At the hearing, Mr Haq told the Tribunal that A1 Hotel Group had withdrawn its application before the Tribunal for review of the Department’s decision not to approve its sponsorship application, there was no subsequent approved nomination in relation to him and nor was there any pending nomination application with the Department.  In a letter lodged with the Tribunal the day before the hearing, Mr Haq requested the Tribunal postpone making its decision on his visa application for 4 weeks because he has found a new sponsor. 

11. Mr Haq told the Tribunal that he was informed by A1 Hotel Group a “few months ago” that it was not going to pursue a nomination of the position currently occupied by him.  He was later advised it has withdrawn its review application with the Tribunal (in respect of the Department’s refusal of the company’s most recent sponsorship application).  Mr Haq said he could “not remember exactly” when he was told this by A1 Hotel Group.  As a result, Mr Haq said it was a few months ago that he began looking for alternative sponsors.  He reiterated his request for an extension of time in which to submit documentation to the Tribunal evidencing lodgement of a nomination application by a prospective employer. 

12. Mr Haq told the Tribunal the owner of the Red Steer Hotel in Wagga Wagga (the Red Steer) is already an approved sponsor and is “thinking about” offering him employment in the role of Hotel Manager.  This discussion occurred “a few weeks ago” after Mr Haq saw the job advertised on Gumtree.  However, Mr Haq said he does not know the full name of the man who owns the Red Steer and confirmed that he had not yet received a written offer of employment from him.  Furthermore, he said his current employer has not given him a written reference to provide to any prospective employers and “to my knowledge” the owner of the Red Steer has not yet called his current employer, AI Hotel Group, for a reference check.  Mr Haq acknowledged to the Tribunal that, in circumstances where he has known for some months that his current employer would not be pursuing a new nomination, a prospective employer has not yet made any reference check, he has not yet received a letter of offer of employment from that prospective employer and no new nomination application had been lodged, it was uncertain when - and even if - he would become the subject of an approved nomination.  His prospective sponsor, the Red Steer, is still “thinking about” offering him employment. 

13. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.  In this case, the Tribunal considered whether it should adjourn the review to allow Mr Haq additional time in which to provide further evidence to support his review application.  There is no obligation on the Tribunal to delay its decision making, merely because an applicant wishes to attempt, either at Departmental level or in the forum of another Tribunal hearing, to meet relevant statutory criterion: Huo v MIMA [2002] FCA 617; Manna v MIMC [2012] FMCA 28. This can apply, in certain circumstances, even where the Tribunal is considering a Subclass 457 visa refusal and a nomination application lodged by an approved sponsor is pending before the Department: Chen v MIBP [2016] FCCA 2351. In this regard, the Tribunal considered: whether, in the circumstances of this case, evidence that Mr Haq meets cl.457.223(4)(a) of Schedule 2 of the Regulations by having an approved nomination made by an approved sponsor is likely to be forthcoming: whether he has had a fair opportunity to provide the relevant information or documentation; any previous adjournment requests; and, the significance of the information or documents to him.

14. In its acknowledgement letter of 22 July 2015, the Tribunal invited the applicants to provide material or written arguments in support of their review applications. Further, in its written invitation of 10 August 2016 to attend the hearing, the Tribunal noted it had been unable to make a favourable decision on material before it and invited the applicants to provide any additional documents or information they wish to rely on during the hearing. No additional information or documentation was provided, apart from Mr Haq’s request for an adjournment received the day before the hearing. It is clear to the Tribunal that, based on Mr Haq’s oral evidence, it is uncertain not only if (and when) he will be offered employment with the Red Steer but also if (and when) a nomination application will be lodged with the Department and, finally, if (and when) he will become the subject of an approved business nomination. The Tribunal also notes the absence of any statement or oral evidence from a representative of the Red Steer. Having regard to all of the circumstances of this case, the Tribunal considers that Mr Haq has had sufficient time to obtain evidence of lodgement of a nomination application by the Red Steer to justify his request for a delay by the Tribunal in its decision as to whether he meets cl.457.223(4)(a) of Schedule 2 of the Regulations. The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

15. Based on the evidence provided, the Tribunal is not satisfied that Mr Haq is, at the time of decision, the subject of an approved business nomination that has not ceased, or that there is an approved nomination of an occupation in relation to him that has not ceased. Accordingly, the Tribunal finds that Mr Haq does not satisfy cl.457.223(4)(a) of Schedule 2 to the Regulations..

16. 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 by Mr Haq in respect of the other streams in cl.457.223 of Schedule 2 to the Regulations and there is no evidence that he would be able to satisfy the specific criteria for those streams.

17. Based on documentation in the Department’s file, the Tribunal is satisfied that the second-named applicant is Mr Haq’s wife and the third-named applicant is his child.  Each therefore is a member of the family unit of Mr Haq.  Since Mr Haq is not a person who has satisfied the primary criteria, it follows that the second-named applicant and the third-named applicant are unable to meet the secondary criteria.

18. As the applicants do not meet the criteria for the visa, the decision under review must be affirmed.

    DECISION

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

    Katie Malyon

    
    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.

    oOOo