Cheng (Migration)

[2022] AATA 894

Cheng (Migration) [2022] AATA 894 (25 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wen-Tsun Cheng

REPRESENTATIVE:  Mr Liang Lu (MARN: 0848726)

CASE NUMBER:  1834524

HOME AFFAIRS REFERENCE(S):          BCC2018/881527

MEMBER:Katie Malyon

DATE:25 March 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

Statement made on 25 March 2022 at 4:19 pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsor stream – position of Carpenter – no approved nomination – closure of the subclass 457 program – decision under review affirmed      

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 140, 353, 359, 363
Migration Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.12

CASES

Hasran v MIAC [2010] FCAFC 40     

STATEMENT OF DECISION AND REASONS APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 5 November 2018 to refuse to grant the applicant, Taiwanese national Mr Wen-Tsung Cheng, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Cheng applied for the visa on 23 February 2018. At the time of application, Class UC contained one subclass: Subclass 457 Temporary Business Entry. 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 of Schedule 2 to the Regulations which requires the visa applicant to satisfy one of the 2 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.

3. 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 stream in cl.457.223(2), the Labour Agreement stream.

   Background

4. The delegate refused to grant the visa on 5 November 2018 on the basis that cl.457.223(4)(a) of Schedule 2 to the Regulations was not met because the nomination application made by Mr Cheng's sponsor, Division Interiors Pty Ltd (the Company), for the position of Carpenter ANZSCO 331212 was not approved.

5. On 9 March 2022, the Tribunal wrote to Mr Cheng pursuant to s.359A of the Act. In its letter, the Tribunal noted that, although the Company had applied to the Tribunal for review of the Department’s refusal of its nomination (Tribunal Case No. 1829441), 20 July 2021 the case was finalised as withdrawn.

6. In addition, the Tribunal noted that one of the requirements for grant of a Subclass 457 visa is that a nomination of an occupation in relation to a visa applicant has been approved under s.140GB of the Act. The Tribunal also noted that the Migration Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations).  Following introduction of the Amending Regulations, a new application for approval of a nomination in support of grant of a Subclass 457 visa can no longer be made.

7. The Tribunal noted that it appeared Mr Cheng is not the subject of an approved nomination by a standard business sponsor as required by cl.457.223(4)(a) of Schedule 2 to the Regulations and, since 18 March 2018, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. The Tribunal observed that, if it relies on this information, it may find that Mr Cheng is not the subject of an approved nomination and, therefore, he does not satisfy the requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

8. Mr Cheng was requested to provide the Tribunal with comments or a response to this information by 23 March 2022. In its letter, the Tribunal advised that, if his comments or response was not provided in writing by 23 March 2022 or, if a request was not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that Mr Cheng would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The Tribunal’s is satisfied its s.359A letter was sent via the correct email address of Mr Cheng’s representative. No comments or response has been provided by Mr Cheng, or his representative, within the prescribed period and no extension of time had been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Cheng is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that, if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow Mr Cheng additional time in which to provide evidence to support his review application. In this regard, the Tribunal has considered whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that Mr Cheng meets the relevant requirements of cl.457.223(4) of Schedule 2 to the Regulations is likely to be forthcoming, whether he has already had a fair opportunity to provide the relevant information or documentation or, in the alternative, request an extension of time in which to do so, and the significance of the information or documents to him.

11. In the circumstances of this case, the Tribunal considers Mr Cheng has had sufficient time in which to address the issue arising on review, that is, whether he is the subject of an approved nomination or, in the alternative, seek an extension of time in which to provide some evidence in support of such a claim. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975.

12. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information, comments or response from Mr Cheng in accordance with s.359C of the Act

13. For the following reasons, the Tribunal has decided that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant, Mr Cheng, meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

15. 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.

16. As noted above, having reviewed the Department's records, on 9 March 2022 the Tribunal wrote to Mr Cheng pursuant to s.359A of the Act with details of information that is adverse to his application. The Tribunal stated that it had finalised as withdrawn the review application made with respect to the associated nomination on 20 July 2021. It also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. Further, it observed that there is no evidence before the Tribunal which confirms there is any approved or pending nomination relating to him. Mr Cheng did not respond to the Tribunal's s.359A letter, nor did he request additional time in which to respond.

17. Having regard to available evidence, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met by Mr Cheng. Accordingly, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made by Mr Cheng in respect of the other stream in cl.457.223 of Schedule 2 to the Regulations - the labour agreement stream - and there is no evidence that he would be able to satisfy the specific criteria for that stream. Accordingly, the Tribunal finds that the decision to refuse Mr Cheng Subclass 457 visa application must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.

    Katie Malyon

    
    Member

    ATTACHMENT - Extracts from the Migration Regulations 1994

    Schedule 2 Part 457

    …

    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.

    oOOo