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

1. 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.

2. 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.

3. 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 both Australia and the United Kingdom. The delegate noted that the applicant had not disclosed any of these in an earlier application for a subclass 417 visa in 2017, nor when asked to do so on incoming passenger declarations he made in 2017 and 2018. The delegate therefore found that the second named applicant had provided false or misleading information to the Department about his criminal record, and found that there were no grounds to waive the requirement for the applicant to meet PIC 4020.

4. On 29 August 2022, the Tribunal wrote to the applicants to advise them that a preliminary view had been taken that the Tribunal did not have jurisdiction in respect of the first named applicant because at the time of the delegate’s decision to refuse to grant the visas, the first named applicant was not identified in an approved nomination that had not ceased, and nor was there a valid and pending application for review before the Tribunal of a decision not to approve the sponsor under s.140E of the Migration Act 1958 (the Act), nor of a decision not to approve the nomination under s.140GB of the Act. The Tribunal noted that the Department’s records indicated that the approved nomination of the first named applicant by Launch Housing Pty Ltd ceased on 16 June 2019. It further noted that under certain savings provisions, the cessation date of a nomination could be extended, but that this did not apply in the first named applicant’s case as she lodged her review application with the Tribunal more than 12 months after the nomination of her was originally approved on 16 June 2018. The Tribunal advised that it was of the view that it did not have jurisdiction to review the  Department’s decision to refuse to grant the first named applicant a subclass 457 visa as her  circumstances did not fall within s.338(2)(d).

5. The Tribunal also invited the second named applicant to respond to or comment on, pursuant to s.359A of the Act, potentially adverse information held by the Tribunal that was relevant to his case. Specifically, the Tribunal advised the second named applicant that the Department originally refused to grant him a subclass 457 visa because it found that he did not meet PIC 4020 and therefore did not satisfy cl.457.325 of Schedule 2 to the Regulations.

6. The Tribunal noted, however, since that time, another potentially adverse issue had arisen. This was that a check of the Department’s Integrated Client Services Environment (ICSE) electronic records conducted on 9 August 2022 indicated that the first named applicant did  not hold a subclass 457 visa. The Tribunal advised that this information was relevant to the review because, subject to the second named applicant’s comments or response, it indicated that he was not a member of the family unit of a person who held a subclass 457 visa that was granted on the basis of them meeting the primary visa criteria, as required by cl.482.321, and that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the second named applicant met cl.485.321 at the time of decision. The Tribunal noted that this formed a discrete basis for affirming the decision under review in relation to the second named applicant, separate from the fact that he was found not to have meet cl.457.325 in 2019 because he did not meet PIC 4020. The Tribunal further noted that the ban on further visa applications imposed by an adverse finding in relation to PIC 4020 and cl.457.325 expires 3 years after the Department’s decision, so appeared to no longer be in force in relation to the second named applicant in any case, as it was now more than 3 years since his refusal decision was made on 4 June 2019.

7. The Tribunal advised, however, that these were matters which must be determined by a Tribunal Member, but that if the applicants wished to make any comments on whether a valid application had been made by the first named applicant, or the adverse information concerning the second named applicant, they were invited to do so in writing by 12 September 2022. Following this, their application, with any comments they made, would then be referred to a Member to make a decision on their application. They were advised that if a Member decided that either of them had not made a valid application, they would be given a written statement of decision and reasons.

8. On the same date, the Tribunal received an electronic notification that the email attaching its letter was undeliverable as the recipient’s email box (the email address being the one nominated by the applicants in their review application to receive correspondence) was full.

9. A Tribunal officer attempted to call the first named applicant on multiple occasions to ascertain another email address but was unable to contact her. The Tribunal officer noted that there was no phone number provided for the authorised recipient for correspondence.

10. Accordingly, on 6 September 2022, a Tribunal officer, acting on the direction of the Presiding Member, sent a copy of its letter to the applicants via postal delivery to the postal address that they nominated in their review application, extending the due date for response to 20 September 2022.

11. The Tribunal did not receive a response to its letters of 29 August 2022 or 6 September 2022 by the due dates. It has received no further communication from either applicant to date.

12. 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

13. 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

14. 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.

15. 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.

16. 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.

17. 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).

18. 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.

19. All primary subclass 457 visa applicants must be identified in an approved nomination.[4] Accordingly one of the first three alternative requirements (ss 338(2)(d)(i)–(iii)) must be met, at the time the decision to refuse to grant the visa is made. This means that, at that point in time, a nomination identifying the primary visa applicant must be approved, or a decision not to approve their sponsor be pending review before the Tribunal, or a decision to refuse the nomination be pending review before the Tribunal, for the decision to be a Part 5-reviewable decision.

    [4] See cl 457.223(4)(a), which applies to all primary applicants in the SBS stream. 

20. As noted above, on 29 August 2022 and 6 September 2022, the Tribunal wrote to the applicants to advise them that it had taken the preliminary view that it did not have jurisdiction in respect of the first named applicant, as she was not the subject of an approved nomination on 31 July 2019 (the date of the primary decision to refuse her a subclass 457 visas), nor was there a pending review application of a decision to refuse her employer’s nomination of her, or of a decision to refuse to approve that employer as a standard business sponsor, on 31 July 2019. As also noted above, the applicants did not respond to this information.

21. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 457 visa as she does not meet s.338(2)(d)(i), (ii) or (iii) and (iv) is not applicable to her. This is because there was no approved nomination of her on 31 July 2019 (as the approved nomination by Launch Housing Pty Ltd had ceased on 16 June 2019 by operation of r.2.75). Nor was there any review pending with the Tribunal on 31 July 2019 of the decision to refuse to approve the nomination, nor of any decision to refuse to approve the first named applicant’s employer as a standard business sponsor.

22. As the delegate’s decision in respect of the first named applicant is not reviewable in these circumstances, it follows that the application for review was not properly made and the Tribunal does not have jurisdiction in relation to her.

    Whether the second named applicant meets the substantive visa criteria

23. Although the Tribunal has found that it does not have jurisdiction in respect of the first named applicant, it is satisfied that it does have jurisdiction to review the decision not to grant the second named applicant a subclass 457 visa, by virtue of s.338(9) and r.4.02(4)(q) of the Act and Regulations, respectively.

24. As set out in the Tribunal’s letters of 29 August 2022 and 6 September 2022, the original reason that the second named applicant was refused a subclass 457 visa by the Department was because he was found not to meet PIC 4020 and thus cl.457.325. However, due to the refusal of a subclass 457 visa to the first named applicant as well, and the Tribunal’s finding that it has no jurisdiction to review that decision, another legal issue has arisen. That is whether the second named applicant can meet the secondary visa criteria in cl.457.321 requiring him to be a member of the family unit of a person who holds a subclass 457 visa.

25. Section 5(1) of the Act provides that ‘member of the family unit’ of a person has the meaning given by the Migration Regulations 1994 (the Regulations). Regulation 1.03 provides ‘member of the family unit’ has the meaning set out in reg 1.12. The definition in reg 1.12 applies for the purposes of both the Act and the Regulations.

26. Regulation 1.12(2) provides that a person is a member of the family unit of another person (the family head) if the person is:

    ·the spouse or de facto partner of the family head;

    ·a child or step-child of the family head or their spouse or de facto who is not engaged, or has a spouse or de facto partner and has not turned 18 or, if aged between 18 and 22 years of age is dependent on the family head (or partner), or if 23 years of age or older is wholly or substantially reliant on the family head (or partner) because they are incapacitated  for work due to loss of bodily or mental functions;

    ·a dependent child of a person in the second dot point.

27. It is not disputed that the second named applicant is the de facto partner of the first named applicant, who was the primary visa applicant. This information was contained in the primary visa application and documentary evidence was provided to the Department in support of the de facto relationship, which was not disputed by the delegate.

28. However, the second named applicant is unable to meet cl.457.321, which must be met at the time of decision (in this case, the time of the Tribunal’s decision in 2022). This is because he is not the de facto partner, and thus is not a member of the family unit, of a person who holds a subclass 457 visa, as the first named applicant was refused a subclass 457 visa and the Tribunal has found above that it has no jurisdiction to review that decision. There is no evidence before the Tribunal that the first named applicant holds a subclass 457 visa.

29. 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

30. The Tribunal does not have jurisdiction in relation to the first named applicant.

31. 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 Mercer
    Member