Chu (Migration) - [2022] AATA 4465

Chu (Migration) [2022] AATA 4465 (30 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Jihun Chu
Ms Seungmin Chu
Miss Sowon Chu
Ms Eunjin Kim
REPRESENTATIVE:  Mr Paul Anthony Murphy (MARN: 1572512)
CASE NUMBER:  2201997
HOME AFFAIRS REFERENCE(S):          BCC2017/631419
MEMBER:Alison Mercer
DATE:30 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, third and fourth named applicants Class UC Temporary Business Entry subclass 457 (Temporary Work (Skilled)) visas.

Statement made on 30 September 2022 at 4:07pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – jurisdiction to review decision – additional requirements for subclass 457 visas – subject of an approved nomination at the date of the primary decision – No jurisdiction in relation to the first named applicant – secondary applicants – primary applicant does not hold a subclass 457 visa – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 4.02; Schedule 2, cls 457.223, 457.321
CASES
Yang v MIAC [2010] FMCA 890
statement of decision and reasons
application for review

An application was made to the Tribunal on 14 February 2022 for review of decisions made by a delegate of the Department of Home Affairs on 24 January 2022 to refuse to grant the applicants Class UC subclass 457 (Temporary Work (Skilled)) visas. The first named applicant was the primary visa applicant for the Class UC subclass 457 visa, and the second, third, and fourth named applicants (the first named applicant’s wife and children) were included in the visa application as members of his family unit.
The Department delegate refused to grant the first named applicant a subclass 457 visa as he did not meet cl.457.223(4)(eb), which required him to have the required English test scores and was not exempt from having to do so. The delegate also refused to grant the second, third, and fourth named applicants subclass 457 visas on the basis that they did not satisfy the secondary visa criteria to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence that they met the primary visa criteria in their own right.
The Tribunal received a review application from the applicants on 14 February 2022. It was accompanied by an authority by which the applicants appointed a registered migration agent, Mr Paul Murphy, as their representative and authorised recipient for correspondence.
On 9 May 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…

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 Chu (Migration)

Details

AGLC: Chu (Migration) [2022] AATA 4465
Case: [2022] AATA 4465
Decision Date: 30 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 named applicant, who sought a subclass 457 visa, and the second, third, and fourth named applicants, who were identified as secondary applicants seeking to be members of the primary applicant's family unit. The dispute centred on whether the Tribunal had jurisdiction to review the decision to refuse the primary applicant a visa and whether the secondary applicants met the criteria for a subclass 457 visa as family members.

The Tribunal was required to determine two key legal issues. Firstly, it had to ascertain whether it possessed jurisdiction to review the decision to refuse the first named applicant a subclass 457 visa. Secondly, the Tribunal needed to determine if the second, third, and fourth named applicants qualified as members 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 subclass 457 visas, section 338(2)(d) of the Migration Act 1958 (Cth) imposes an additional requirement for reviewability. This requirement mandates that, at the time of the decision to refuse the visa, the applicant must either be identified in an approved nomination, have a pending review of a decision not to approve their sponsor or nomination, or, if not a criterion for the visa, be sponsored by an approved sponsor. The Tribunal determined that none of these conditions were met for the first named applicant. Consequently, the Tribunal affirmed the decision not to grant the subclass 457 visas to the second, third, and fourth named applicants, as they did not satisfy the criteria for the grant of such a visa, and the primary applicant's application was the sole basis for their eligibility.

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, third and fourth named applicants did not respond to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), they are 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 further comments or response have 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, third and fourth 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, third and fourth named applicants are members of the family unit of the primary visa applicant and satisfy 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, third and fourth named applicants do 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 them.decision The Tribunal does not have jurisdiction in relation to the first named applicant. The Tribunal affirms the decision not to grant the second, third and fourth named applicants Class UC Temporary Business Entry subclass 457 (Temporary Work (Skilled)) visas.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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