Chen (Migration)

[2020] AATA 4505

Chen (Migration) [2020] AATA 4505 (27 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yao Chen
Ms Yuqing Chen
Master Weiyi Chen
Miss Xiangfei Chen

CASE NUMBER:  1730330

DIBP REFERENCE(S):  BCC2016/4398596

MEMBER:Karen Synon

DATE:27 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 October 2020 at 10:56am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – sponsor’s position nomination refused and application for review withdrawn – no response to invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321

CASE
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 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 29 December 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 22 November 2017 on the basis that the primary review applicant (the applicant) did not satisfy cl.457.223(4)(a) because he was not the subject of an approved nomination.

5. The applicants applied for review of the primary decision on 2 December 2017 and provided a copy of the Department’s decision.

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

7. On 5 October 2020 the applicants were invited to a hearing on 26 November 2020.  On 7 October 2020 the applicant responded advising he would attend the hearing.

8. However, relevantly, on 9 October 2020, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments or respond, in writing, to information it considered would be the reason or part of the reason for affirming the decision under review.  The Tribunal raised the following particulars:

   ·The information is contained on Tribunal file number 1730330.  That Tribunal file was created because Shun Fung Seafood Restaurant (WA) Pty Ltd applied to the Tribunal for review of a Department decision not to approve a nomination, in respect of you, for the occupation of ‘Chef’.  On 8 January 2020 Shun Fung Seafood Restaurant (WA) Pty Ltd withdrew that application for review.

   ·Departmental records indicate that you are not presently the subject of an approved nomination by a standard business sponsor.

   ·Department records also indicate that Yuqing Chen is not presently the subject of an approved or pending nomination by a standard business sponsor.

9. The applicants were advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, the applicant must be the subject of an approved nomination by a standard business sponsor.

10. The applicants were also relevantly advised:

    If we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information.  You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.  This hearing right will be lost regardless of whether you have already been invited to a hearing.[1]

    [1]Tribunal’s emphasis.

11. Comments or a response in writing were invited by 26 October 2020.

12. The s.359A invitation was sent to the applicants’ representative’s email address on 9 October 2020.  In this letter the applicants were advised that if a response or comments were not provided in writing by 26 October 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The applicants did not provide comments or a response within the prescribed period and no extension of time in which to provide comments or respond was received or granted within the prescribed period.

14. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it communicated with the applicants via email at their representative’s advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

17. 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.

18. As detailed to the applicants in accordance with s.359A, there is no information contained on the Department’s files which records that the applicant is the subject of an approved nomination by a standard business sponsor.

19. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

20. The second named applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.  Nor is there any evidence that the second named applicant would be able to satisfy the requirements of any stream within the program as a primary visa applicant.

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

22. 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

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

    Karen Synon
    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.