1511039 (Migration)

[2016] AATA 3833

1511039 (Migration) [2016] AATA 3833 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dheeraj Koneru
Ms Sruthi Koneru

CASE NUMBER:  1511039

DIBP REFERENCE(S):  BCC2015/847941

MEMBER:Mary-Ann Cooper

DATE:29 April 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 29 April 2016 at 12:20pm

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 16 March 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 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 17 July 2015 on the basis that cl.457.223(4)(a) was not met because the first-named applicant (the applicant) was not identified in an approved nomination.

5. The applicants were represented in relation to the review by their registered migration agent.

6. On 12 April 2016 the Tribunal wrote to the review applicants pursuant to s.359 of the Act, inviting them to provide information in writing demonstrating that the applicant was the subject of an approved nomination by a standard business sponsor.

7. The invitation was sent to the applicants’ authorised representative and the last address provided in connection with the review and advised that, if the information was not provided in writing by 26 April 2016, 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 have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicants have not provided the information within the prescribed period and no extension has been sought or granted. 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 a review 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 is satisfied that the request for information complied with the statutory requirements and, in the absence of any communication from the applicants or their representative, has decided to proceed to decision without taking further steps to obtain the information.

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 primary visa 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 recorded in the delegate’s decision, a copy of which was supplied with the review application, the nomination of an occupation in respect of the applicant, made by his applicant’s prospective employer, was refused. There is no record of any review application lodged by the employer in respect of this refusal.

13. The tribunal observes that another nomination approval application in respect of the applicant, by his sponsoring employer, was made on 13 August 2015 however it was also refused. There is no other information available to the tribunal demonstrating that the applicants are the subject of an approved nomination by a standard business sponsor.

14. For these reasons the requirements of cl.457.223(4)(a) are not met.

    CONCLUSION

15. 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

16. The delegate also refused a visa to the secondary applicant, the child of the visa applicant and who is included in his application.

17. 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 457 visas, or any other subclass.

    DECISION

18. 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

    (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.