1515035 (Migration)

Case [2016] AATA 4768

1515035 (Migration) [2016] AATA 4768 (5 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr MARK JAMES FERRIS BIGGAR

CASE NUMBER:  1515035

DIBP REFERENCE(S):  BCC2015/1197512

MEMBER:Antonio Dronjic

DATE:5 December 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 05 December 2016 at 4:16pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Skills, qualifications and employment background – Occupation of Solid Plasterer – Invitation to provide information – Request for extension of time

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363, 363A
Migration Regulations 1994, cl 457.223

CASES

Hasran v MIAC (2010) 183 FCR 413

Singh v MIBP [2014] FCCA 1403

MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233

Hasran v MIAC [2010] FCAFC 40

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013)

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 (4 February 2014)

Kaur v Minister for Immigration and Border Protection [2014] FCA 915 (28 August 2014)

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

  2. The visa applicant applied for the visa on 23 April 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 visa on 16 October 2015 on the basis that cl.457.223 (4) (da) was not met. The delegate concluded that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of a Solid Plasterer.

  5. The applicant applied to the tribunal on 5 November 2015 for review of the delegate’s decision and provided a copy of the primary decision record with the application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

  7. Clause 457.223(4)(a) requires that there is an approved nomination of an…

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1515035 (Migration) [2016] AATA 4768
Case
[2016] AATA 4768
Decision Date

CaseChat Overview and Summary

This matter concerned a review of a decision not to grant a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), to the applicant, who was nominated for the occupation of Solid Plasterer. The review was heard by the tribunal.

The primary legal issues before the tribunal were whether the applicant had provided sufficient information to demonstrate that they met the requirements of clause 457.223(4)(a) of the Migration Regulations, specifically concerning an approved nomination and the applicant's skills, qualifications, and employment background for the nominated occupation. The tribunal also had to consider the applicant's requests for extensions of time to provide this information.

The tribunal reasoned that it had invited the applicant to provide information regarding the approved nomination and their suitability for the nominated occupation, setting a deadline of 10 November 2016. An initial extension was granted until 25 November 2016. However, a subsequent request for a further extension was made after the statutory period had expired, and the tribunal determined it lacked the power to grant such an extension, citing established case law. The tribunal also noted that a request for an extension of time does not constitute a response to a request for information. Consequently, the tribunal found that the requirements for the standard business sponsor stream had not been met.

The tribunal affirmed the decision not to grant the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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. On 27 October 2016, the tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether the applicant is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations. With the same letter, the tribunal invited the applicant to provide information in writing to demonstrate that the applicant has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the information was not provided in writing by 10 November 2016, and no extension of time has been sought or granted, the tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement she might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments. On 10 November 2016, the applicant requested an extension of time to provide requested information. The tribunal granted an extension of time for a further statutory period until 25 November 2016. On 30 November 2016, the applicant’s representative requested further extension of time to provide information. The tribunal observes that the second request for extension of time was submitted after the expiration of the prescribed statutory period to do so. The tribunal is not empowered to extend the period to respond to an invitation when the request for the extension is received after the initial prescribed period has passed.[1][1] Hasran v MIAC (2010) 183 FCR 413 at [48]. This confirmed prior comments in Xue v MIAC [2009] FMCA 421 (Nicholls FM, 28 April 2009) following Usman v MIMIA [2005] FMCA 966 (Pascoe CFM, 5 August 2005), MIMIA v Sun (2005) 146 FCR 498 at [51] and M v MIMA (2006) 155 FCR 333 at [52]. On the same day, the tribunal officer wrote to the applicant stating that the matter is awaiting constitution and that the tribunal member may make a decision on the review without taking any further action to obtain the information. With the same letter the tribunal invited the applicant to provide any additional material in support of the application. None was provided as at the time of this decision. A request by an applicant for an extension of time does not constitute a response to a request for information under ss.359(2)/424(2). In Singh v MIBP[2] in finding that a request by the applicant for an extension of time did not constitute a response to the tribunal’s request for information of the applicant’s competency in English, the Court distinguished MIAC v Saba Bros Tiling Pty Ltd[3] on the basis that that case was concerned with an invitation to ‘comment or respond’ pursuant to s.359A(1)(c) and not an invitation to ‘give information’ pursuant to s.359C(1).[2] Singh v MIBP [2014] FCCA 1403 (Judge McGuire, 13 August 2014).[3] MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233.

Decision

Reasons for decision

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.DECISION The tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.Antonio DronjicMemberATTACHMENT - 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.

Ratio Decidendi

Legal Principle Established

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