Cococcioni (Migration)

[2021] AATA 646

Cococcioni (Migration) [2021] AATA 646 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Federica Cococcioni
Mr Jay Daniel Ford

CASE NUMBER:  1815159

HOME AFFAIRS REFERENCE(S):          BCC2018/522504

MEMBER:Antonio Dronjic

DATE:29 January 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first named applicant Temporary Business Entry (Class UC) visa;

The Tribunal does not have jurisdiction in respect of the second named applicant.

Statement made on 29 January 2021 at 2:13pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – member of the family unit – applicant made no claims against the primary criteria – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, Schedule 2 cl 457.321; r 1.12

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for 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 made by a delegate of the Minister for Home Affairs on 15 May 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (the Act).

2. On 31 January 2018, the first named applicant (the applicant) has applied for the grant of a Temporary Work(Skilled) (Subsequent Entrant) (subclass 457) visa on the basis that she is a member of the family unit of Mr Jay Daniel Ford (the primary applicant) who, having satisfied the primary criteria, is the holder of a Temporary Work (Skilled) (Subsequent Entrant) (subclass 457) visa. Ms Cococcioni made no claims against the primary criteria for the grant of a Subclass 457 visa.

3. Mr Ford applied for a Class UC Subclass 457 – Temporary Work (Skilled) visa on 21 August 2017 and the Department refused to grant the visa on 15 May 2018. As the primary applicant, Mr Ford was found to not satisfy the prescribed criteria for grant of a Subclass 457 visa on the same day the delegate refused to grant the visa to Ms Cococcioni on the basis that she made no claims against the primary criteria for the grant of a Subclass 457 visa and cannot meet the requirements of cl.457.321.

4. The applicant applied to the Tribunal on 24 May 2018 for review of the delegate’s decision and with her application submitted a copy of the primary decision record. The applicant was represented in relation to the review by her registered migration agent. Included in her review application form was Mr Ford. As the primary decision related to this review application does not contain decision related to Mr Ford, the Tribunal has no jurisdiction to review his application.

5. On 23 December 2020, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 13 January 2021.

6. On 8 January 2021, the applicant wrote to the Tribunal confirming her attendance at the hearing scheduled for 13 January 2021.

7. On 11 January 2021, the applicant’s representative wrote to the Tribunal submitting that the applicant will be appearing in connection with the review application lodged by her partner, Jay Daniel Ford, on Tuesday 12 January 2021. The applicant requested that the hearing scheduled for 13 January 2021 be cancelled as ‘we don’t feel it’s necessary in the circumstances’.

8. On 11 January 2021, the applicant’s newly appointed representative wrote to the Tribunal seeking that the applicant’s hearing scheduled for 13 January 2021 be ‘merged’ with the hearing related to Mr Ford’s review application that was scheduled for 12 January 2021.

9. On the same day, the Tribunal wrote to the applicant’s representative informing her that the Member considered her request to combine the hearings and decided not to grant the request. The applicant was informed that the hearing of her review application will proceed as scheduled.

10. On 12 January 2021, the applicant’s representative wrote to the Tribunal advising that Ms Cococcioni does not want to attend the scheduled hearing and consents to the Tribunal making its decision based on the evidence before it. On the same day, the Tribunal wrote to the applicant seeking clarification as to whether the applicant wishes to withdraw the review application or whether the applicant consents to the Tribunal making a decision without the applicant appearing before it (as per s.360(2)(b)).

11. On 13 January 2021, the applicant’s representative submitted that the applicant is not withdrawing her application but does not wish to attend the hearing.

12. On 14 January 2021, the Tribunal wrote to the applicant inviting comments on or response to the following information under section 359A:

    The particulars of the information are:

    • On 31 January 2018, you applied for the grant of a Temporary Work(Skilled)

    (Subsequent Entrant) (subclass 457) visa on the basis of being a member of the

    family unit of Mr Jay Daniel Ford (the primary applicant) who, having satisfied the

    primary criteria, is the holder of a Temporary Work(Skilled) (Subsequent Entrant)

    (subclass 457) visa. You did not make claims that you can meet the primary

    criteria for the grant of a Subclass 457 visa.

    • The Department refused to grant the visa to Mr Ford on 15 May 2018.

    Consequently, your visa application was refused by the Department on the same

    day because you could neither meet the primary visa criteria nor cl.457.321 which

    requires you to be the member of the family unit of a person (the primary applicant)

    who is the holder of a subclass 457 visa. (copy cl.457.321 is attached to this letter)

    • On 22 May 2018, Mr Ford applied to this Tribunal for review of the primary

    decision. On 12 January 2021 the Tribunal affirmed the primary decision.

    This information is relevant to the review because as Mr Ford is not a holder of a
    Subclass 457 visa, you will not be able to meet cl.457.321 to the Regulations. If we
    rely on this information in making our decision, we may affirm the decision under the review.

13. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 28 January 2021, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 14 January 2021.

14. The review applicant has not provided comments on or response to the information contained in the Tribunal letter.

15. The Tribunal has also considered whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 14 January 2021.

16. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

17. The Tribunal considered whether, in the circumstances of this case, the applicant’s comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.

18. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting her to provide comments and/or or response to the Tribunal letter of 14 January 2021. The applicant did not provide comments and/or or response.

19. The Tribunal has had regard to the fact that the visa application was refused by the Department on 15 May 2018, because the applicant made no claims in respect of the primary visa criteria and she was unable to satisfy the requirements of cl.457.321 as the primary visa applicant, Mr Ford was not holder of a Subclass 457 visa. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate’s’ decision for more than 31 months.

20. The Tribunal note that, if the applicant is not granted a temporary work visa, she may be required to depart Australia. There is nothing to prevent the applicant from re-applying for a temporary visa once she is able to meet the visa requirements.

21. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide her comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

22. As previously noted, on 12 January 2021, the applicant provided a consent in writing pursuant to s.360(2)(b) of the Act to the Tribunal deciding the review without the applicant appearing before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

24. The applicant has made no claims against the primary criteria for the grant of a Subclass 457 – Temporary Work (Skilled) visa. Based on the evidence before it, the Tribunal is not satisfied that the applicant meets the primary criteria for the grant of the Subclass 457 visa.

25. The issue in this case is whether the applicant satisfies the secondary criteria contained within clause 457.321, which requires her to be the member of the family unit of a person (the primary applicant) who is the holder of a subclass 457 visa. Member of the family unit is defined in regulation 1.12 and includes a dependent child of the family head or of a spouse or de facto partner of the family head (r.1.12(1)(b)).

26. The primary applicant for a Subclass 457 visa was Mr Ford. His visa application was refused by the Department on 15 May 2018. He applied to this Tribunal for review of the primary decision on 22 May 2018 and the Tribunal affirmed the primary decision on 12 January 2012.

27. Based on the evidence before it, the Tribunal is not satisfied that the applicant is a member of the family unit of a person who, having satisfied the primary criteria is the holder of a Subclass 457 visa. Accordingly, the Tribunal finds that the applicant applicant does not satisfy cl.457.321.

28. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

29. The Tribunal affirms the decision not to grant the first named applicant Temporary Business Entry (Class UC) visa.

30. The Tribunal does not have jurisdiction in respect of the second named applicant.

    Antonio Dronjic
    Member

    
    

    ATTACHMENT - EXTRACTS FROM THE MIGRATION REGULATIONS 1994