Burns (Migration) - [2022] AATA 3474

Burns (Migration) [2022] AATA 3474 (21 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Miss Niamh Collette Burns
Mr Thomas James Maguire
CASE NUMBER:  1916401
HOME AFFAIRS REFERENCE(S):          BCC2018/965615
MEMBER:Alison Mercer
DATE:21 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal does not have jurisdiction in relation to the first named applicant.
The Tribunal affirms the decision not to grant the second named applicant a Class UC Temporary Business Entry subclass 457 (Temporary Work (Skilled)) visa.

Statement made on 21 September 2022 at 4:10pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – No jurisdiction in respect of the first named applicant – bogus document – criminal convictions – member of the family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359C, 360, 363A, 411, 412
Migration Regulations 1994 (Cth), r 4.02; Schedule 2, cls 457.223, 457.321, 457.325; Schedule 4, PIC 4020
CASES
Yang v MIAC [2010] FMCA 890
statement of decision and reasons
application for review

An application was made to the Tribunal on 23 June 2019 for review of a decision made by a delegate of the Department of Home Affairs on 4 June 2019 to refuse to grant the second named applicant a Class UC subclass 457 visa. Subsequently, this review application was combined with a review application made by the first named applicant in respect of a decision made by the Department on 31 July 2019 to refuse to grant her a Class UC subclass 457 visa. The first named applicant was the primary visa applicant for the Class UC subclass 457 visa, and the second named applicant was included in the visa application as her partner and thus a member of her family unit.
The Department delegate refused to grant the first named applicant a subclass 457 visa as she did not meet cl.457.223(4)(a), which required her to be the subject of an approved nomination by an approved standard business sponsor (SBS). The delegate found that the applicant had been nominated as a Welfare Worker by her Australian employer, Launch Housing Pty Ltd, but that its nomination of her had ceased by operation of law.
The Department delegate refused to grant the second named applicant a subclass 457 visa because he was found not to meet cl.457.325, which required (amongst other things) that he satisfied Public Interest Criterion 4020 (PIC 4020) of Schedule 4 to the Migration Regulations 1994 (the Regulations). The delegate noted that PIC 4020 required the Department to be satisfied that the second named applicant had not provided, or caused to be provided, a bogus document or false or misleading information to the Department. The delegate found that the second named applicant had stated in his visa application that he had no criminal convictions but had subsequently provided an Australian and a United Kingdom police check indicating that he had several criminal convictions between 2007 and 2013 in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns (Migration)

Details

AGLC: Burns (Migration) [2022] AATA 3474
Case: [2022] AATA 3474
Decision Date: 21 September 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered a review application concerning a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)). The applicants were identified as the first and second named applicants. The dispute centred on the refusal to grant the visa to the first applicant and the eligibility of the second applicant as a member of the family unit.

The Tribunal was required to determine two primary legal issues. Firstly, whether it possessed jurisdiction to review the decision to refuse the subclass 457 visa to the first named applicant. Secondly, whether the second named applicant qualified as a member of the family unit of the primary visa applicant and satisfied the relevant criteria under clause 457.321 of the Migration Regulations 1994.

In relation to the first named applicant, the Tribunal found it lacked jurisdiction. This was because, for a subclass 457 visa, section 338(2)(d) of the Migration Act 1958 (Cth) requires an additional criterion to be met for reviewability. In this instance, the applicant was identified in an approved nomination, and none of the alternative reviewability pathways under section 338(2)(d) were satisfied. Regarding the second named applicant, the Tribunal noted that he did not respond to a section 359A letter, meaning he was not entitled to appear before the Tribunal under section 360(3). Consequently, the Tribunal affirmed the decision not to grant the second named applicant a subclass 457 visa, as he did not satisfy the criteria for its grant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The second named applicant did not respond to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), he is not entitled to appear before the Tribunal. The Tribunal has no power to permit an applicant to appear before it where they are not entitled to do so: see s.363A and Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where no comments or response has been provided despite this being requested, and the criterion in dispute is a confined legal issue - the Tribunal has decided to proceed to a decision without taking further steps to obtain the second named applicant’s views about the information contained in its s.359A letter. Consideration of LAW, claims and evidence The issues in this review are:·whether the Tribunal has jurisdiction to review the decision to refuse the first named applicant a subclass 457 visa; and ·whether the second named applicant is a member of the family unit of the primary visa applicant and satisfies cl 457.321.Jurisdiction in respect of the first named applicant For the following reasons, the Tribunal has found that it has no jurisdiction in respect of the review application made by the first named applicant. The Tribunal has jurisdiction to review a decision under the Migration Act 1958 (Cth) (the Act) if an application is properly made under s 347 or s 412 of that Act, or in limited circumstances not relevant to this application, s 29 of the Administrative Appeals Tribunal Act 1975 (Cth). Sections 338 and 411 of the Act and reg 4.02(4) of the Migration Regulations 1994 (Cth) set out the range of decisions that are reviewable in the Migration and Refugee Division of the Tribunal and the circumstances in which they are reviewable. For onshore visa applications, such as the current one, a decision to refuse to grant a subclass 457 visa is reviewable in certain circumstances as set out in s 338(2). Paragraphs (a) to (c) of s 338(2) apply in all cases, requiring that the visa could be granted to a person in the migration zone, and the person made the application in the migration zone after being immigration cleared (which would always be the case for a valid onshore subclass 457 visa application). The Tribunal is satisfied that these conditions are met in this case. However, section 338(2)(d) imposes an additional requirement for certain prescribed temporary visas to be reviewable (including subclass 457 visas).[1] There are four alternative requirements; however, the fourth is only applicable if it is not a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased under the Regulations. [1] A subclass 457 visa is prescribed for s 338(2)(d): reg 4.02(1A). In each instance, the requirement must be met at the time the decision to refuse to grant the visa is made. The alternatives are:(i)the non-citizen is identified in an approved nomination that has not ceased under the regulations;[2] or(ii)a review of a decision under s 140E not to approve the sponsor of the non-citizen is pending; or(iii)a review of a decision under s 140GB not to approve the nomination of the non-citizen is pending; or(iv)except if it is a criterion for the grant of the visa that the non-citizen is identified in an approved nomination that has not ceased, the non-citizen is sponsored by an approved sponsor.[3][2] See reg 2.75 for cessation of nominations associated with subclass 457 visas.[3] s 338(2)(d) as repealed and substituted by No 90, 2018, with effect for decisions made on or after 13 December 2018.

Decision

Reasons for decision

It follows that the second named applicant does not satisfy the criteria for the grant of a subclass 457 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed in relation to him.decision The Tribunal does not have jurisdiction in relation to the first named applicant. The Tribunal affirms the decision not to grant the second named applicant a Class UC Temporary Business Entry subclass 457 (Temporary Work (Skilled)) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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