Chen (Migration)

[2021] AATA 4614

Chen (Migration) [2021] AATA 4614 (20 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Han-ling Chen
Mr Chuang-hung Wang

CASE NUMBER:  1826433

HOME AFFAIRS REFERENCE(S):          BCC2017/1962047

MEMBER:K. Chapman

DATE:20 September 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 20 September 2021 at 7:03pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Education Managers – subject of an approved nomination – nomination application refused – no response to s 359A invitation – Tribunal declined indefinite adjournment of decision – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Kaur v Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Home Affairs to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant, Ms Han-ling Chen, applied for the visa on 2 June 2017, including the second named applicant in the application. In the present case, the first named applicant (hereafter ‘the applicant’) seeks the visa to work in the nominated occupation of Education Managers (nec) (ANZSCO Code 134499). Her position was nominated by ABC Australia Education Center Pty Ltd (‘the nominator’).

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 (Cth) (‘the Regulations’). One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the 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 10 September 2018 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination as required. On 10 September 2018, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with her application for review.

5. The applicant appeared by telephone before the Tribunal on 20 July 2021 to give evidence and present arguments. She confirmed that she was comfortable participating in the hearing by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant confirmed she understood the interpreter service. The applicant was represented in relation to the review by her registered migration agent.

6. Following the review hearing, on 2 September 2021, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting her to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by ABC Australia Education Center Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal (see AAT matter 1824729). This means that the nominator’s application for the nominated position has not been approved.”

7. The Tribunal is satisfied that this invitation was properly despatched to the email address of the applicant’s registered migration agent (‘the representative’). The due date for response to this invitation was 16 September 2021. No response to the invitation, pursuant to s.359A of the Act, has been received by the Tribunal at the time of this decision.

8. Where the applicant is invited to respond to information in accordance with s.359A of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(2) of the Act.

9. The Tribunal has carefully considered whether to afford additional time to the applicant to respond to the information in the s.359A invitation, or to provide further material in support of their application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process.

10. The Tribunal has taken into account that the applicant has been aware since around 10 September 2018 of the reasons for the visa application being refused, and also that the implications of not responding to the information in the invitation from the Tribunal of 2 September 2021 were set out in that correspondence. Additionally, the Tribunal notes that no contact has been made with it by the representative or the applicant since the review hearing on 20 July 2021.

11. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to respond to the s.359A invitation and address the central issues arising in the application for review. On balance, the Tribunal considers it appropriate to make its decision on the review without taking any further action to obtain the applicant’s response to the invitation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

14. 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.

15. At the review hearing, the applicant advised that she had submitted all of her evidence in relation to the nomination at the review hearing held for the associated review application of the nominator.

16. The Tribunal notes that the nomination of the applicant for the position of Education Managers (nec) (ANZSCO Code 134499) by ABC Australia Education Center Pty Ltd (the nominator) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.457.223(4)(a) are not met.

17. For the reasons expressed above, the Tribunal finds that the requirements for the standard business sponsor stream have not been satisfied. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams.

18. Given that the applicant has not met the requirements for the grant of a Subclass 457 visa and is not the holder of a Subclass 457 visa, it follows that the second named applicant does not satisfy the requirements of cl.457.321. The Tribunal so finds.  

    DECISION

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

    K. Chapman
    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.