Amarjit Singh (Migration)

[2017] AATA 3084

Amarjit Singh (Migration) [2017] AATA 3084 (14 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amarjit Singh

CASE NUMBER:  1516631

DIBP REFERENCE(S):  BCC2015/2576622

MEMBER:Antonio Dronjic

DATE:14 March 2017

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 14 March 2017 at 4:15pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Requirement for the applicant to be the subject of an approved nomination – Nomination refused by the Department – Applicant did not respond to s 359A letter - Applicant not the subject of an approved nomination

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994, Schedule 2, cl 457.223(4)(a)

CASES
Hasran v MIAC [2010] FCAFC 40

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 4 September 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 12 November 2015, on the basis that cl.457.223 (4)(a) was not met. The department refused the nomination application lodged by the applicant’s prospective employer, Artic Tern Pty Ltd, nominating the applicant for a position of a nominated occupation in the nomination application is Café or Restaurant Manager (ANZSCO 141111) within the business.

5. The applicant applied to the tribunal on 3 December 2015 and provided a copy of the primary decision record with the application. The applicant was represented by a migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. On 15 February 2017, the tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

   • Your visa application was refused by the Department on 12 November 2015 because the delegate found that you have failed to meet the requirements of cl.457.223 (4)(a).
   • The Artic Tern Pty Ltd did not satisfy 2.72(10)(c).
   • The Artic Tern Pty Ltd applied for review of the decision made by the Department not to approve business nomination application to this tribunal on 2 December 2015.
   • On 15 February 2017 this tribunal affirmed the decision not to approve nomination made by The Artic Tern Pty Ltd.

9. The invitation was sent to the applicant’s representatives’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 1 March 2017, 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 comments on or response to the information contained in the tribunal letter of 15 February 2017 and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the tribunal to give evidence and present arguments.

10. On 20 February 2017, the applicant submitted a Change of Contact Details form.

11. The applicant has not provided his comments on or response to the information contained in the tribunal letter. 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.

12. The tribunal decided to adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide his comments on or response to the information contained in the tribunal letter of 15 February 2017.

13. On 3 March 2017, the tribunal wrote to the applicant the following letter:

    By letter dated 15 February 2017, the tribunal invited you to provide your comments on or response to adverse information contained in the tribunal letter. You were advised that your comments on or response to information must be received by 1 March 2017 or that you must ask for an extension of time to do so on or before 1 March 2017. You were advised that if you fail to do so, you would lose your entitlement to appear before the tribunal at a hearing.

    You have not provided your comment on or response to the information contained in the tribunal letter of 15 February 2017 or sought an extension of time to do so. In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the tribunal. However, the presiding member decided to adjourn the review under subsection 363(1)(b) of the Act until 9 March 2017 to allow you additional time in which to provide submissions and evidence in support of the review application.

    The tribunal will consider any other evidence or submissions that it receives from the applicant on or before 9 March 2017 and will than proceed to make a decision on the review.

14. The applicant did not provide any comments on or response to the information contained in the tribunal letter of 15 February 2017. Nor he provided any documentary evidence or submissions in support of his application as invited to do so by the tribunal on 3 March 2017.

15. In this case the tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the tribunal letter of 15 February 2017. The tribunal notes that the applicant has had the benefit of representation from a registered migration agent to assist with his review application. Yet, neither the applicant nor his representative provided comments and/or or response within the prescribed periods set for this purpose.

16. The tribunal has had regard to the fact that the visa application was refused by the Department on 12 November 2015 because the applicant was unable to meet the cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant submitted a copy of the primary decision record with the review application.

17. 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 the applicant for the position within their business.

18. In these circumstances, and for the reasons set out in this decision record, the tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide his comments on or response to information contained in the tribunal letter.

19. Based on the evidence before it, the tribunal finds that the applicant is not, at the time of tribunal 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 that has not ceased. The tribunal finds that the applicant does not satisfy cl.457.223(4)(a).

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.

    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.