DA ROCHA BRAGA JUNIOR (Migration)

[2018] AATA 5606

DA ROCHA BRAGA JUNIOR (Migration) [2018] AATA 5606 (29 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr RONILDO DA ROCHA BRAGA JUNIOR

CASE NUMBER:  1722896

DIBP REFERENCE(S):  BCC2016/4373007

MEMBER:R. Skaros

DATE:29 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 November 2018 at 2:50pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – invitation to comment on information – request for extension of time not received until after the prescribed period has ended – not entitled to appear before the Tribunal – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 27 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 visa on 20 September 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.  

5. A copy of the decision record was provided with the application for review. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. The applicant applied for the visa on the basis of a nomination by Squirrel Superannuation Services Pty Ltd. That nomination was not approved. Departmental records indicate that the nomination in respect of the applicant was administratively finalised by the Department following the refusal to approve Squirrel Superannuation Services Pty Ltd as a standard business sponsor. 

10. On 12 October 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting him to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to departmental records indicating that the most recent nomination in relation to the applicant, for the purposes of a 457 visa, was made by Squirrel Superannuation Services and had been administratively finalised by the Department on 8 June 2017. The Tribunal explained that the information is relevant to the requirements in cl.457.223(4)(a) which requires the applicant to be the subject of a current approved nomination under s.140GB of the Act.

11. The Tribunal also informed the applicant that on 18 March 2018 the Subclass 457 visa was repealed and replaced with the Subclass 482 (Temporary Skills Shortage) visa. It noted that new nominations lodged from 18 March 2018 are for Subclass 482 visas or existing 457 visa holders and do not support an outstanding application for a Subclass 457 visa. The Tribunal explained that if it relied on the information before it, it may find that he does not meet the requirements in cl.457.223(4)(a).

12. The invitation was sent to the representative at the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 26 October 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The review applicant did not provide the comments within the prescribed period. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40.

14. On 29 October 2018, the Tribunal received email correspondence from the representative stating that he was in the process of seeking instructions from the applicant. He also informed the Tribunal that he is overseas and will return to Australia on 3 November 2018. He requested a period of 7 days to respond.

15. On 29 October 2018 an officer of the Tribunal, on instruction from the member, wrote to the applicant informing him that while it had received a request for an extension of time to respond to the invitation to comment, that request was not received until after the prescribed period had ended and as such, the applicant had lost his right to appear before the Tribunal to give evidence and present arguments. The Tribunal informed the applicant that it had nevertheless decided to delay the making of its decision until 7 November 2018 to enable the applicant to provide information he wished the Tribunal to consider.

16. To date the Tribunal has not received any response from the applicant or his representative and there is no information before the Tribunal which suggests that this case has any prospect of success. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

17. For the applicant to succeed in this review, he is required to demonstrate that he is the subject of an approved nomination made under s.140GB of the Act for the purposes of a Subclass 457 visa. The evidence before the Tribunal indicates that the applicant is not the subject of such a nomination. Furthermore, given the legislative changes which came into effect on 18 March 2018, it appears that the applicant has no prospect of becoming the subject of an approved nomination that is capable of supporting his application for a Subclass 457 visa.

18. On the evidence before it, the Tribunal finds that there is no approved nomination of an occupation under s.140GB, for the purposes of a Subclass 457 visa, in respect of the applicant. For these reasons the requirements of cl.457.223(4)(a) are not met.

19. 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

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

    R. Skaros
    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.