1600017 (Migration)

[2016] AATA 4676

1600017 (Migration) [2016] AATA 4676 (21 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr GURPREET SINGH MAAN
Mrs MANPREET KAUR
Master GURNOOR SINGH MAAN

CASE NUMBER:  1600017

DIBP REFERENCE(S):  BCC2015/2085415

MEMBER:Antonio Dronjic

DATE:21 November 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 21 November 2016 at 3:59pm

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 21 July 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 December 2015 on the basis that the fist named applicant has failed to meet cl.457.223 (4)(e). The first named applicant was nominated by Phenix Group Pty Ltd to work as Motor Mechanic. On 3 August 2015 the delegate requested that the first named applicant commence a subclass 457 skills assessment process with the Trades Recognition Australia TRA). On 31 August 2015 the applicant informed the department that he commenced the skills assessment process with the TRA.

5. On 8 September 2015 the delegate requested that the first named applicant provide evidence of successful skills assessment outcome from the relevant assessing authority by 5 December 2015. As he had failed to do so, the delegate refused the visa applications.

6. The applicants applied to the tribunal on 3 January 2016 and provided a copy of the primary decision record with the applications. The applicants were represented by a migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(e).

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(e) prescribes that, if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Motor Mechanic and the manner specified was skills assessment from the relevant assessing authority.

10. On 21 October 2016, the tribunal wrote to the applicants pursuant to s.359(2) of the Act inviting the first named applicant to provide information in writing as to whether the first named applicant has the skills that are necessary to perform the occupation by completing the skills assessment for a 457 visa that is conducted by TRA.

11. The invitation was sent to the applicants’ address provided in connection with the review and advised that, if the information was not provided in writing by 4 November 2016, and no extension of time has been granted, 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 had under the Act to appear before the tribunal to give evidence and present arguments.

12. On 4 November 2016, the applicants’ representative wrote to the tribunal seeking the extension of time to provide information in writing. On 4 November 2016, the tribunal officer wrote to the applicant advising that the member granted an extension of time to provide information in writing for a further statutory period (until 18 November 2016).

13. The review applicants have not provided the information within the prescribed period. 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 review applicant has no entitlement to a hearing, the tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40.

14. The tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support their review application.

15. In doing so, the tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

16. The tribunal considered whether, in the circumstances of this case, the evidence that the first named applicant meets the requirements of cl.457.223(4)(e), is likely to be forthcoming, whether the first named applicant had a fair opportunity to provide the relevant information or documents already, previous extensions of time to provide information and the significance of the information or documents to the applicants.

17. On 21 October 2016, the tribunal wrote to the applicants under subsection 359(2) of the Act inviting them to provide information in writing that would confirm that the first named applicant meets the requirements of cl.457.223(4)(e).

18. On 4 November 2016, the tribunal granted an extension of time to provide information in writing until 18 November 2016. The applicants have failed to provide the requested information within the prescribed periods set for this purpose.

19. The tribunal has had regard to the fact that the visa applications were refused by the Department on 17 December 2015. The first named applicant was initially requested by the department to commence the 457 skills assessment process with TRA on 3 August 2015. On 8 September 2015 the delegate requested that the first named applicant provide evidence of successful skills assessment outcome. The applicant was aware of the reasons for the visa refusal for almost 12 months.

20. The tribunal note that, if the applicants are not granted a temporary work visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for this visa once the first named applicant obtains a successful skills assessment outcome for his nominated occupation from TRA.

21. In these circumstances, and for the reasons set out in this decision record, the tribunal considers that the applicants have 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 primary applicant will provide information in writing as to whether he meets cl. 457.223(4)(e). The tribunal is not disposed to delay making a decision indefinitely.

22. 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 applicants more time in which to demonstrate that the first named applicant meets the requirements of cl.457.223(4)(e). 

23. Based on the evidence before it, the tribunal is not satisfied that the first named applicant demonstrated that he has skills that are necessary to perform the occupation of a Motor Mechanic in the manner specified by the Minister; namely by obtaining a subclass 457 skills assessment from the relevant assessing authority. Accordingly, the tribunal finds that the primary applicant does not satisfy cl.457.223(4)(e).

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

25. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second and the third named applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an 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.

    DECISION

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

    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.