1515035 (Migration)

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

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).
The visa applicant applied for the visa on 23 April 2015.
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.
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.
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.
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.
The review applicant has not provided the information within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is 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.
The tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support his review application.
In doing so, the tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[4] and Manna v Minister for Immigration and Citizenship[5] 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[6] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[7] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[8] where analogous issues were discussed.
[4] [2002] FCA 617
[5] [2012] FMCA 28
[6] [2013] HCA 18 (8 May 2013)
[7] [2014] FCAFC 1 (4 February 2014)
[8] [2014] FCA 915 (28 August 2014)
The tribunal considered whether, in the circumstances of this case, the evidence that the applicant meets the requirements of cl.457.223 (4)(a) and cl.457.223(4)(da) is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, previous extension of time and the significance of the information or documents to the applicant.
With its acknowledgment letter of 6 November 2016, the tribunal invited the applicant to provide material or written arguments in support of his review application. He has failed to do so.
On 27 October 2016, the tribunal wrote to the applicant under subsection 359(2) of the Act inviting him to provide information in writing that would confirm that the applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(da). The applicant has failed to provide the requested information within the prescribed periods set for this purpose.
The tribunal has had regard to the fact that the visa application was refused by the Department on 16 October 2015 because the delegate concluded that the applicant does not have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The applicant submitted a copy of the primary decision record with the review application. As a result, the tribunal observes that the applicant has been aware for more than 12 months of the reasons for the visa application refusal.
The tribunal note that, if the applicant is not granted a temporary work visa, he may be required to depart Australia. There is nothing to prevent the applicant from re-applying for this visa once he finds the new employer willing to sponsor and nominate him for the position within the business.
In these circumstances, and for the reasons set out in this decision record, the tribunal considers that the applicant has 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 applicant will provide information in writing as to whether he is the subject of an approved nomination and whether he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. The tribunal is not disposed to delay making a decision indefinitely.
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 applicant more time in which to demonstrate that he meets the requirements of cl.457.223(4)(a) and (da).
Based on the evidence before it, the tribunal is not satisfied that the applicant 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 the applicant applicant that has not ceased. The tribunal finds that the applicant applicant does not satisfy cl.457.223(4)(a).
As each limb of subclause 457.223(4) must be satisfied, this finding is determinative of the review and it is unnecessary to make findings in relation to subclause 457.223(4)(da).
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 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.

[2016] AATA 4768

5 December 2016

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Jurisdiction

Natural Justice