Angala (Migration)

[2019] AATA 4291

Angala (Migration) [2019] AATA 4291 (25 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Peter James Burgos Angala
Master Harvey Nichols Angala
Miss Kirsten Cate Angala
Master George Hudson Angala
Miss Chanice Lorrien Angala
Mrs Medal Ruth Joy Angala

CASE NUMBER:  1706421

DIBP REFERENCE(S):  BCC2016/1986341

MEMBER:Amanda Mendes Da Costa

DATE:25 September 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.   

Statement made on 25 September 2019 at 1:14pm

CATCHWORDS

MIGRATION – refusal – Temporary Business Entry (Class UC) visa – Subclass 457 –– approved nomination ceased – legislative change – visa subclass discontinued – successor subclass cannot be linked to original application – circumstances beyond applicants’ control – referred to Department for consideration by Minister – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)

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 7 June 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. 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 8 March 2017 on the basis that cl.457.211 was not met because at the time of application the first named applicant did not hold a substantive visa and the delegate was not satisfied that the first named applicant met criteria 3003, 3004 and 3005 of Schedule 3 to the Regulations.

5. The applicants were represented in relation to the review by their registered migration agent.

6. The applicants were invited to appear before the Tribunal on 10 July 2019 to give evidence and present arguments. The applicant’s migration agent advised the Tribunal on 9 July 2019 as follows:

   We understand that the Visa Applicants will receive a refusal as a result of the nomination being expired and no longer meeting requirements.  Given the 457 visa no longer exists and now its 482 visa, his visa application cannot be saved in any event as the nomination would be under the 482 which cannot be linked to his 457.

7. The migration agent requested that in such circumstances the Tribunal make a decision without the necessity of a hearing and also make a recommendation for Ministerial intervention in the matter.

8. Upon consideration of the material in both the Department’s and Tribunal’s files and the information provided by the applicant’s migration agent, the Tribunal has concluded (for the following reasons) that the decision under review should be affirmed. The Tribunal has also decided to make a recommendation for Ministerial intervention in the matter.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case are whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

10. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor, which has not ceased.

11. A review of the Departmental and Tribunal files shows that the first named applicant was the subject of an approved nomination by a standard business sponsor, Vincent Joseph Ficarra, which expired on 5 October 2017.

12. Based on the evidence before it, the Tribunal is not satisfied that at the time of this decision there is an approved nomination of an occupation relating to the first named applicant by a standard business sponsor, which has not ceased.

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

14. In relation to the second, third, fourth, fifth and sixth named applicants, the Tribunal finds that as the first named applicant does not meet the criteria for grant of a Temporary Business Entry (Class UC) visa, the second, third, fourth, fifth and sixth named applicants do not meet the criteria for a Subclass 457 visa as members of the family unit of a person who has satisfied the primary criteria.  The Tribunal therefore affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

15. 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.

16. The applicants have requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

17. On 15 July 2019 the Tribunal sent the applicant’s a letter pursuant to s.359(2) of the Act inviting the applicants to provide the grounds or reasons in writing, for the Tribunal referring the matter to the Minister for intervention.

18. On 16 July 2019 the Tribunal received a request from the applicants for an extension of time in which to provide information regarding their request for a referral for Ministerial intervention.  The Tribunal granted this request and gave the applicants until 20 September 2019 to provide the requested information.

19. On 20 September 2019 the applicant’s provided written submissions to the Tribunal, which may be summarised as follows:

    ·The nomination has expired and due to the effluxion of time the applicants have not had an opportunity to provide the Tribunal with evidence regarding the waiver of Schedule 3 criteria and the applicants cannot now satisfy the Tribunal that their application should be remitted to the Department for re-consideration.

    ·Given the subclass 457 visa no longer exists and subclass 482 nominations cannot be linked to a subclass 457 visa application, the applicants have been affected by a legislative change which is beyond their control.

    ·There is a limitation on visa applications which can be made once a visa application for a different subclass has been refused. In relation to the applicants, given the subclass 457 visa has been refused, ministerial intervention is sought to request the Minister to issue the applicants subclass 600 visas in substitution for the subclass 457 is that the applicants are affected by circumstances not anticipated by legislation, or clearly unintended consequences of legislation, or the application of relevant legislation which has led to unfair or unreasonable results for them.

20. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to discretionary power set out in the Department’s Procedures Advice Manual (PAM3).  The Tribunal acknowledges that due to the effluxion of time and the legislative changes made in conjunction with the abolition of the subclass 457 visa, the first named applicant is no longer in a position to obtain a nomination approval for a position associated with his subclass 457 visa refusal.  Accordingly, the Tribunal will refer the matter to the Department.

    DECISION

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

22. The Tribunal refers the matter to the Department for consideration by the Minister pursuant to s.351 of the Act.

    Amanda Mendes Da Costa
    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.