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

1. 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.

2. 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.

3. 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.

4. 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 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 invited the applicants to provide their comments on this issue.

5. On 31 May 2022, the Tribunal received the following response from the applicants’ agent:

   …

   My client’s employer has written the attached letter to summarise my client’s value to the ongoing operations of his employer’s business and we respectfully request that you consider its contents.

   I advise the Tribunal that it was always my client’s expectation that he could not succeed in his review application to the Tribunal, given that to date, he has been unable to meet the English language requirements at cl. 457.223(4)(eb) of the Migration Regulations 1994, as they were on 15 February 2017. Rather, my client sought a review on the basis that its refusal would enliven the Minister’s powers of intervention in his case.

   As you will note from the attached comments of his employer, my client’s skills and expertise are immensely valuable to the ongoing operations of that business. We also seek to highlight the projects on which his skills are employed are those of significant public works, largely funded by NSW taxpayers.

   It is our respectful submission that the Minister for Immigration’s intervention in my client’s favour is very much in the public interest, particularly in terms of the exceptional economic benefit that would result from him being permitted to remain in Australia. We submit that the ongoing viability of his employer’s operations and the public works projects they are contracted to carry out, as well as the ongoing employment of the many other Australian citizens and permanent residents who work with him give rise to that exceptional benefit.

   We accept these are matters for the Minister to consider, however we believed that canvassing these issues with supporting evidence at a Tribunal hearing may have given rise to a recommendation from you to the Minister that she intervene in my client’s case. We maintain that belief.

   However, we do not dispute that at the time of the delegate’s decision to refuse to grant the visa, my client was not identified in an approved nomination that has not ceased, nor was there a valid and pending application for review of a decision not to approve the sponsor under s.140E of the Migration Act 1958, or of a decision not to approve the nomination under s.140GB of the Act.

   We appreciate the opportunity to provide these comments, and I would welcome the opportunity to provide further information about these matters if you require it.

   …

6. On 14 June 2022, the applicants’ agent advised the Tribunal that each of the applicants waived their rights to a hearing but none of the applicants wished to withdraw their request for review.

7. On 6 September 2022, the Tribunal wrote again to the second, third and fourth named applicants via their agent pursuant to s.359A of the Act, inviting their comments or response to information held by the Tribunal that was potentially adverse to their case. Specifically, the Tribunal advised the applicants that a check of the Department’s Integrated Client Services Environment (ICSE) records on 2 September 2022 indicated that the first named applicant did not hold a subclass 457 visa. It further advised them that this information was relevant to the review because, subject to their comments or response, it indicated that they were not members 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.457.321, and that this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it is a requirement that they met cl.457.321 at the time of decision.

8. The Tribunal requested that they provide their comments or response by 20 September 2022, noting that if they did not respond by that date (or seek an extension of time to do so by that date), they would lose their entitlement to a hearing, and the Tribunal might proceed to make its decision without taking further steps to obtain their views.

9. The Tribunal did not receive a response to its letter of 6 September 2022 by the due date, nor did it receive a request for an extension of time to do so. It has received no further communication from either applicant to date.

10. 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

11. 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

12. 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.

13. 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.

14. 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.

15. 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).

16. 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.

17. 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. 

18. As noted above, on 9 May 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 he was not the subject of an approved nomination on 24 January 2022 (the date of the primary decision to refuse him a subclass 457 visas), nor was there a pending review application of a decision to refuse his employer’s nomination of him, or of a decision to refuse to approve that employer as a standard business sponsor, on 24 January 2022. As also noted above, the applicants provided a response to this information, including that they did not dispute that the first named applicant did not have an approved nomination as at the date of the primary decision.

19. The Tribunal finds that it does not have jurisdiction to review the decision to refuse the first named applicant a subclass 457 visa as he does not meet s.338(2)(d)(i), (ii) or (iii) and (iv) is not applicable to him. This is because there was no approved nomination of him on 24 January 2022 (as the approved nomination by his employer Sam the Paving Man Pty Ltd had ceased on 20 March 2018 by operation of r.2.75). Nor was there any review pending with the Tribunal on 24 January 2022 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.

20. 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 him.

    Whether the second, third and fourth named applicants meet the substantive visa criteria

21. 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, third and fourth named applicants subclass 457 visas, by virtue of s.338(9) and r.4.02(4)(q) of the Act and Regulations, respectively.

22. 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.

23. 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.

24. It is not disputed that the second, third and fourth named applicants are the wife and children 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 family relationship, which was not disputed by the delegate.

25. However, the second, third and fourth named applicants are 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 they are not the wife and children, and thus are not members 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.

26. 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

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

28. 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 Mercer
    Member