ALLA (Migration)

[2019] AATA 277

ALLA (Migration) [2019] AATA 277 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rajasekhar ALLA

CASE NUMBER:  1721997

DIBP REFERENCE(S):  BCC2016/3199615

MEMBER:Alan McMurran

DATE:4 February 2019

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 04 February 2019 at 10:38am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – approved nomination – business ownership changed – new nomination lodged – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 140GB
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.72

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 27 September 2016.

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.

4. 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.

5. The delegate refused to grant the visa on 30 August 2017 on the basis that cl.457.223 (4) was not met because the applicant was not the subject of an approved nomination by a standard business sponsor.

   Background

6. The applicant is a 30-year-old citizen of India, who was applying for a 457 visa, nominated for the occupation of cook. The applicant arrived in Australia in 2014 on a dependent student visa with his then wife as the primary applicant, and has arrived and departed many times since. A copy of the applicant’s movement record from the Department’s file has been obtained by the Tribunal. The applicant has been on a Bridging Visa 020, granted 21 September 2017, pending the outcome of the decision concerning the applicant’s 457 visa application.

7. The Department sent a letter to the applicant on 15 November 2016 prior to its decision in August 2017, inviting information concerning the 457 visa application. A check of the Department’s file shows the applicant did not respond to that request. The sponsor’s nomination application was refused on 31 July 2017.

8. Following the receipt of this application for review, which was lodged on 16 September 2017, the Tribunal sent an acknowledgement letter on 21 September 2017 and invited the applicant to provide material or written arguments for the Tribunal to consider as soon as possible. The Tribunal provided its fact sheet which gave information to the applicant about providing further information or evidence and material which the applicant believes supports his application, and explaining why he disagreed with the Department’s decision.

9. The applicant did not respond and has provided no further information for consideration since lodging the application for review. More than a year has elapsed without any communication from the applicant and no information from him concerning any approved nomination or further application for approval of a nomination by the sponsor, or another sponsor on his behalf.

10. On 12 November 2018, the applicant was invited to a hearing at the Tribunal on 13 December 2018. The hearing was to be conducted in a multi-application hearing list, which comprises several matters which have the same or a similar issue for consideration. The issue was the absence of an approved nomination for the issue of a 457 visa.

11. On 7 December 2018, an officer of the Tribunal contacted the applicant about the withdrawal of his representation, and the applicant indicated he was aware of the upcoming hearing, but was not sure whether he would attend.

12. On the evening of 12 December 2018, at 10:50 PM, the applicant sent an email to the Tribunal advising that:

    “As I am sick and unable to attend the hearing tomorrow and as you know my lawyer has withdrawn his assistance for my case and I’m trying to appoint a new lawyer to take up this case forward on behalf of me”.

    The email also asked for “sufficient time to get a new lawyer” and “I went to hospital today and they have written for x-ray tomorrow followed by Dr appointment after getting reports”.

13. The applicant did not appear in the multi-application hearing list held on 13 December 2018. The applicant provided by email on 12 December 2018 at 10:50pm a medical certificate that simply said the applicant “has a medical condition and will be unfit for work from 12/12/2018 to 13/12/2018 inclusive”.

14. The Tribunal wrote to the applicant on 14 December 2018 at the previous agent’s address, and re-sent the letter to the applicant’s new email address on 11 January 2019. The Tribunal agreed to provide an extension of time for the applicant to provide any further information he wanted the Tribunal to consider as he had been unable to attend the hearing.

15. The applicant was requested to respond to the extension of time by 25 January 2019, which was the date listed for a re-scheduled hearing, and including making any further application for an extension of time and providing reasons for consideration in that regard. The Tribunal letter informed the applicant as follows:

    “On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r. 2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa.

    It is a requirement for the grant of the visa that you are the subject of an approved nomination by a standard business sponsor: cl 457. 223 (4) of Schedule 2 to the Regulations. A review of your file suggests that you are not the subject of an approved nomination by a standard business sponsor, and that a new application for approval of a nomination in support of your Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

    Without an approved nomination, you will not meet an essential criterion for the grant of the visa. This would mean that the decision under review must be affirmed.

    If you are now the subject of an approved nomination for a subclass 457 (Temporary Work (Skilled)) visa, please provide us with evidence about this. You will also be required to provide any details concerning any sponsor or proposed sponsorship approved; any nomination proposed or lodged; or any other relevant information the Tribunal can consider.”

16. The applicant was requested to provide evidence in that regard by the re-scheduled hearing date, 25 January 2019. The letter informed the applicant that if the Tribunal did not receive the information within the time allowed, the Tribunal may make a decision without taking any further action to obtain the information, and the applicant would lose any entitlement he might otherwise have had to appear and give evidence and present arguments.

    The hearing

17. The applicant appeared for the re-scheduled hearing before the Tribunal on 25 January 2019 to give oral evidence and present arguments. The applicant did not present any further written information. The hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

18. The applicant presented at the hearing without a representative. The applicant indicated that he had sought advice from a new representative, who was in fact acting for his present employer. The Tribunal asked why the representative was not present. The applicant said that the representative was awaiting the outcome of the visa application on review.

19. The Tribunal explained to the applicant the process of approval for the visa and the need to have an approved nomination. The Tribunal asked about the applicant’s present work circumstances.

20. The applicant said that he had continued to work for the same employer since about 2015. The applicant said he had given information about his employment to his previous representative, including payslips. The applicant said that he was a secondary applicant to his wife’s student visa and he had full work rights. The applicant said that he had since divorced his wife in India in 2017 and had remarried. He said his first wife was in Australia studying IT and his second wife was still living in India. The applicant said he had no dependent children from either marriage. The applicant said he had obtained a Bridging visa pending the outcome of his review application.

21. The Tribunal asked why the applicant had not provided any information about his current circumstances. The applicant said that he thought his sponsor was dealing with the application on his behalf and he did not know the outcome until he was informed in about October 2018 that the nomination was refused. The Tribunal sought clarification from the applicant and pointed out that the sponsor’s nomination had been refused on 31 July 2017, which led to this review application by the applicant when his visa was subsequently refused by the Department on 30 August 2017.

22. The applicant said there had been a further or “new” application for a nomination approval by the previous sponsor following the refusal of the initial nomination application on 31 July 2017. The Department records disclosed that there had been a later nomination which was refused by the Department on 16 October 2018, and no review had been sought. The applicant could not provide details of the most recent nomination but said it was for the same position by the same sponsor.

23. The Tribunal discussed this matter with the applicant who said that there had been a change of ownership of the sponsor’s restaurant “about 6 months ago”. He said the sponsor had owned two restaurants, one at Newtown and one at Homebush which had now been sold. He said the new owner purchased the Newtown restaurant where the applicant still works as a cook in the kitchen, and kept the sponsor’s original name. The applicant was unable to give details of the new owner, whose name he said was “Jijo”. He did not know if the new owner was also a standard business sponsor.

24. The Homebush restaurant was sold to someone else and is now called “Blue Moon”. The applicant said the new owner told him that he wanted to “keep him on” at Newtown and would sponsor him. The applicant said that he did not have any information and had not signed a new contract of employment with the new owner. He said the only information he had was some payslips, and which he had given to his previous representative. The applicant did not have any details he could give to the Tribunal about the latest nomination refused in October 2018.

25. The applicant agreed with the Tribunal that this visa review application was in respect of the earlier nomination of the applicant which had been dealt with and refused on 31 July 2017 and in respect of which there was no nomination review pending. The Tribunal pointed out that this visa review application could not be “tacked on” to the latest nomination application decided by the Department in October 2018 and was a “separate” proceeding.

26. The applicant agreed that he was unable to provide any details of a new nomination or sponsorship that had been approved with another sponsor. The Tribunal informed the applicant that without an approved nomination by an approved sponsor, the visa application could not succeed.

27. The Tribunal asked the applicant if he wished to make any comment on the basis that he had no approved nomination or pending nomination from an approved standard business sponsor. The Tribunal told the applicant this would be the reason or part of the reason for affirming the decision under review.

28. The Tribunal informed the applicant that unless he had relevant information which he had not yet provided that the decision under review to refuse the visa must stand. The Tribunal informed the applicant that he had already allowed a considerable time to pass without providing any information and the Tribunal had also extended time at his request to allow him to do so, most recently in its letter of 11 January 2019 (set out above) which the applicant confirmed he had received and read, together with the same letter sent to his former agent on 14 December 2018.

29. The Tribunal asked the applicant why he had taken no action and in summary, the Tribunal understood his response to be that he thought the matter was in the hands of his agent and was being dealt with. The Tribunal did not accept this response, pointing out that the agent is no longer acting and had withdrawn in December 2018. The applicant said this was only recent and that prior to that, he had left things to the agent.

30. The applicant also said that he had had to travel to India several times in 2017 for the reason of his divorce and remarriage and that each time he had asked the agent on his return for information. The Tribunal did not accept that submission and reminded the applicant that it was his responsibility to progress his application or any further application he might wish to make and to provide any information he thought relevant and it did not assist him or the Tribunal for him to blame his former representative for not being proactive.

31. On conclusion of the hearing, the Tribunal agreed to provide the applicant with one further extension of time until Friday, 1 February 2019, before proceeding to finalise this review. The Tribunal explained to the applicant that the purpose of extending time was to enable him to seek advice from his new representative and to speak with his current employer, as it appeared to the Tribunal that the applicant had not fully appreciated his application could not succeed and that he did not have an approved nomination and that it was not possible for him now to apply for a further 457 visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

33. 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

34. 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.

35. The applicant was the subject of a nomination application by his sponsor, Mums Recipes Pty Ltd. The nomination application was refused by the Department on 31 July 2017, and that refusal has not been reviewed by the sponsor.

36. The applicant made no further submissions following the hearing and by the requested extension of time date to 1 February 2019.

37. Since 18 March 2018, the Tribunal further notes that it is no longer possible for the applicant to apply under the repealed 457 visa scheme or for an approval of a nomination under that scheme.

    Findings

38. The Tribunal has had regard to the Tribunal’s file, and the Department’s file[1] and the matters raised at the hearing and is satisfied there is no evidence of an approved nomination by a standard business sponsor in favour of the applicant and which meets the requirements of 2.72 of the Regulations for approval of a nomination Subclass 457 (Temporary Work (Skilled)) visa.

    [1] BCC 2016/3199615

39. As the applicant is not the subject of an approved nomination under section 140GB of the Act, the applicant does not meet regulation 457.223(4) (a) (i).

40. For these reasons the requirements of cl.457.223 (4)(a) are not met and the Tribunal finds that the requirements for the standard business sponsor stream have not been met.

41. 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

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

    Alan McMurran
    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.