1600429 (Migration)

[2016] AATA 4579

1600429 (Migration) [2016] AATA 4579 (19 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jasmeet Singh

CASE NUMBER:  1600429

DIBP REFERENCE(S):  BCC2014/2203242

MEMBER:Denise Connolly

DATE:19 October 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 October 2016 at 3:07pm

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

2. The applicant applied for the visa on 3 September 2014.

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 applicant has provided to the Tribunal a copy of the delegate’s decision record. The delegate refused to grant the visa on 9 January 2015 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination that had not ceased. At the time the applicant was sponsored by Alice Food Concepts Pty Ltd. The Department had refused Alice Food Concepts Pty Ltd’s Standard Business Sponsorship applications on 17 October 2014 and 9 January 2015, and the nomination application was not assessed.

5. On 27 April 2015 the Tribunal decided it did not have jurisdiction in this case.  The applicant sought judicial review and the matter was remitted by the Federal Circuit Court on 8 January 2016 for reconsideration, the Court having found that the Tribunal committed a jurisdictional error in finding that it did not have jurisdiction to consider the applicant’s application for review. This matter is now before the Tribunal pursuant to the Court’s order.

6. The applicant appeared before the Tribunal on 12 May 2016 and 9 August 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

8. 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.

9. The applicant provided to the Tribunal a copy of the delegate’s decision record. It records that on 9 January 2015 the delegate refused the visa application because the applicant was not the subject of an approved nomination, as his sponsor, Alice Food Concepts, was not a standard business sponsor and so the nomination application was not assessed.

10. At the hearing on 12 May 2016 the Tribunal explained to the applicant the requirement that he is the subject of an approved nomination that has not ceased. The applicant indicated he understood and provided evidence to the Tribunal that Alice Food Concepts continued to sponsor him and had its standard business sponsorship application approved in August 2015. He provided evidence that the sponsor lodged a nomination application on 12 May 2016, of which the applicant is the subject. The Tribunal asked why the sponsor waited several months after sponsorship approval to lodge the nomination application. He indicated he was waiting for his own matter to be dealt with. The Tribunal agreed to wait until close of business 24 June 2016 for further evidence demonstrating that the applicant meets cl.457.223(4)(a).

11. The applicant’s sponsor subsequently contacted the Tribunal and advised that Alice Food Concepts was still waiting for the nomination application to be finalised.  The Tribunal was made aware of the Department’s records that the applicant’s sponsor may be the subject of monitoring by the Department and that this may delay the nomination application process. The Tribunal set the matter down for a further hearing on 9 August 2016 to ascertain the status of the sponsor’s nomination application.

12. At the hearing in August 2016 the Tribunal explained to the applicant its concern that the monitoring may delay the Department’s decision. It explained its concern that the applicant may not have evidence of meeting cl.457.223(4)(a) in the foreseeable future. The applicant told the Tribunal that he was working for Alice Food Concepts at its Feeling Peckish restaurant at Alice Springs. It has two other restaurants, Tasty Treats and Flavours of India. The applicant indicated he was aware that the Department was monitoring the sponsor because of some complaints it had received. He had not been interviewed by the Department but was aware that the owner of Alice Food Concepts was having personal problems with people in Alice Springs. The applicant explained that a person who used to work for the sponsor complained to the Department that the sponsor was paying people at a lower rate than agreed. The applicant denied that this was happening. He said the Department interviewed all the Subclass 457 visa holders at the end of June. At the time he knew about these interviews but he did not know why the Department was undertaking its monitoring.

13. The Tribunal explained that it would not wait indefinitely for the applicant to meet the requirement of cl.457.223(4)(a). It noted that it had been two years since the applicant made his visa application, which requires that he be the subject of an approved nomination that has not ceased and that it may consider that he has had a reasonable opportunity to meet this criterion. The applicant indicated that he has provided all of the other evidence required to meet the visa requirements. He indicated that Alice Food Concepts’ first nomination application, of which he was the subject, was refused because it had not met its training obligations. It then made another nomination application. He indicated that his sponsor had emailed the Department two weeks before the hearing, enquiring about the nomination application. The Tribunal noted it had not seen evidence to indicate that his sponsor is likely to have its nomination application approved in the foreseeable future. The applicant acknowledged that his sponsor is under the process of monitoring by the Department. He requested however that the Tribunal agree to postpone its decision in order for him to provide evidence that he meets cl.457.223(4)(a). The Tribunal agreed to wait until close of business 23 August 2016 for the applicant to provide further evidence. It explained however that it would not wait indefinitely and that it was concerned that the nomination application might be refused. It explained that the applicant has now had two years to meet a mandatory requirement for the grant of the visa and in the applicant’s circumstances there may be no utility in postponing its decision further. It explained that it would then make its decision on the evidence before it.

14. On 23 August 2016 the applicant provided evidence from his employer, Satnam Singh, who wrote to the Tribunal and advised that his business sponsors other visa holders. Mr Singh advised that the Department had assured him that his nomination application was being processed. Given this he asked that the Tribunal provide the applicant with further time before making its decision.

15. The Tribunal wrote to the applicant on 6 September 2016 and advised that it had agreed to wait until close of business 30 September 2016 for any further information he wishes for the Tribunal to take into account. It advised it would then proceed to make its decision on the evidence before it.

16. The applicant did not make any further contact with the Tribunal. He did not provide any further evidence that he meets cl.457.223(4)(a) or request that the Tribunal postpone making its decision. 

17. The Tribunal had advised the applicant, in writing, on 6 September 2016 that if he did not respond by 30 September 2016 it would proceed to make its decision on the evidence before it. He has not made any further contact with the Tribunal. The Tribunal is satisfied the applicant is aware that he has not provided the evidence required to meet cl.457.223(4)(a). However he has not sought any further time to provide this evidence.  In these circumstances the Tribunal has decided to make its decision on the evidence before it.

18. There is no evidence before the Tribunal to confirm that there is an approved nomination of an occupation, relating to the applicant, by a standard business sponsor that has not ceased.

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

20. 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

21. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Denise Connolly
    A/g Senior 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.