Dare to Love Pty Ltd (Migration)

Dare to Love Pty Ltd (Migration) [2022] AATA 1681 (31 May 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT: Dare to Love Pty Ltd

VISA APPLICANTS:  Mr Harpreet Singh
Mrs Manpreet Kaur Dhillon
Miss Ashleen Kaur
Master Jaibir Singh
CASE NUMBER:  1907840
HOME AFFAIRS REFERENCE(S):          BCC2018/953735
MEMBER:Karen McNamara
DATE:31 May 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
The Tribunal does not have jurisdiction in this matter in relation to the fourth named visa applicant.

Statement made on 31 May 2022 at 10:35am
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Motor Mechanic (General) – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – reviewable decision – not subject to a decision by the Department – No jurisdiction
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338, 347, 359C, 360, 363A, 411, 412
Migration Regulations 1994 (Cth), r 4.02; Schedule 2, cls 457.223, 457.321
CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v 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

This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 28 February 2018.
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 (Cth) (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.
The delegate refused to grant the visas on 4 February 2019 on the basis that cl.457.223(4)(a) was not met because the related nomination application lodged by Dare to Love Pty Ltd (the nominator and review applicant), nominating Mr Harpreet Singh (the visa applicant) to work in the nominated position of Motor Mechanic (General) (ANZSCO 321211), was refused by a delegate of the Minister on 4 January 2019. Accordingly, the delegate found that Mr Harpreet Singh was not the subject of an approved nomination.
The delegate also found that the second named applicant, Mrs Manpreet Kaur Dhillon and the third named applicant Miss Ashleen Kaur could not be granted a Subclass 457 visa, as they did not meet the secondary visa criterion (cl.457.321) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 457 visa.
The Department’s notification of decision dated 4 February 2019 was defective as the review rights specified were incorrect. On 18 March 2019 the visa applicants were re-notified by the Department of its decision to affirm the applications.
The Tribunal notes that in this instance the review application was lodged with the Tribunal on 1 April 2019 by the visa applicant’s nominating Australian employer (Dare to Love Pty Ltd) because the visa applicants were offshore at the time the visa application was lodged with the Department.
The review application was accompanied by a copy of the Department’s notification letter dated 18 March 2019. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(a) for grant of the visa.
Requirement for an approved nomination
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.
On 5 May 2022, the Tribunal invited the review applicant under s.360 of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient) to appear before the Tribunal on 16 June 2022 at 12:30 pm. The Tribunal notes that at the time of this decision the review applicant has not responded to this invitation.
On 10 May 2022, the Tribunal wrote to the review applicant pursuant to s.359(A) of the Act (dispatched by email to the authorised recipient). The letter invited the review applicant to comment on or respond to, information which the Tribunal considered would, subject to their comments or response, be the reason or part of the reason for affirming the decision under review.
The information related to information before the Tribunal that shows on 14 December 2021, the Tribunal affirmed the Department's decision not to approve the nomination in relation to Mr Harpreet Singh, made by the nominating employer, Dare to Love Pty Ltd.
The Tribunal’s letter of 10 May 2022 noted that this information is relevant to the review because Mr Harpreet Singh is not the subject of an approved nomination and there must be an approved related nomination to be able to be granted the visa. The letter further stated:
‘ The relevance of the information is that Mr Harpreet Singh is not the subject of an
approved nomination and the Tribunal will find that he does not meet the requirements
of cl.457.223(4)(a) and will affirm the decision under review.
If the Tribunal relies on this information, it may find that the nomination in relation to
Mr Harpreet Singh has not been approved and consequently the decision under review would be affirmed.
You are invited to give comments on or respond to the above information in writing.
Your comments or response should be received by 24 May 2022. If the comments
or response are in a language other than English, they must be accompanied by an
English translation from an accredited translator.
If you cannot provide your written comments or response by 24 May 2022, you may
ask us for an extension of time in which to provide the comments or response. If you
make such a request, it must be received by us by 24 May 2022, and you must state
the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether
or not the extension has been granted.
An invitation to attend a scheduled hearing was sent to you on 5 May 2022. Please note, however, that if we do not receive your comments or response within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information. You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.’
The invitation to comment/respond was sent to the authorised recipient at the last email address provided in connection with the review and advised as stated above, if the comments/response were not provided in writing by 24 May 2022, the Tribunal may make a decision on the review without taking further steps to obtain the applicant’s comments and the review applicant would lose any entitlement they may otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.
As at the time of this decision, the review applicant has not provided the comments within the prescribed period and no extension has been sought or has been granted. 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. Accordingly, the review applicant has lost the right to appear before the Tribunal to give evidence and present arguments relating to this review application.
The Tribunal has carefully considered whether to afford additional time to the review applicant to provide comments as requested in the s.359(a) invitation, or to provide further material in support of the application for review.
In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.
The Tribunal is satisfied that the invitation to provide comment was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. At the time of this decision, the review applicant has not provided comment, or a response and the review applicant has not made contact with the Tribunal to indicate that a response is forthcoming.
The Tribunal has also taken into account the fact that the implications of not providing the comments/response as requested in the invitation from the Tribunal, were set out in the Tribunal’s letter of 10 May 2022.
In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence without taking further steps to obtain the review applicant’s comments.
There is no information before the Tribunal to support that Mr Harpreet Singh is the subject of a current approved or pending nomination by a standard business sponsor or a nomination application on review with the Tribunal. As a consequence of the Migration Legislation Amendment (Temporary Skills Shortage Visa and Complementary Reforms) Regulations 2018, the Subclass 457 visa class was repealed and closed to new applications.
This means that Mr Harpreet Singh is not the subject of an approved or pending nomination as required by cl. 457.223(4)(a), and there is no prospect of the applicant lodging a new application.
On the evidence before it, the Tribunal finds that the requirements of cl. 457.223(4)(a) are not met.
There is no evidence before the Tribunal to indicate that the second named or third named visa applicants meet the primary requirements for grant of the visa.
In relation to the second named visa applicant Mrs Manpreet Kaur Dhillon and third named visa applicant Miss Ashleen Kaur, the Tribunal notes that cl.457.321 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary visa applicant) who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria for the grant of the visa.
As the primary visa applicant in this matter (Mr Harpreet Singh) has not met the requirements for the grant of a Subclass 457 visa and is not the holder of a Subclass 457 visa, it follows that the second named visa applicant Mrs Manpreet Kaur Dhillon and third named visa applicant Miss Ashleen Kaur, as a member of Mr Harpreet Singh’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named visa applicants do not satisfy cl.457.321 of Schedule 2 to the Regulations.
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.
Jurisdiction in relation to the fourth named visa 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 the 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. They include decisions to refuse and cancel visas of various kinds and a range of sponsorship and nomination decisions.
Evidence before the Tribunal indicates that the fourth named visa applicant (Master Jaibir Singh) was not subject to a decision by the Department as he was not included in his parent’s application lodged with the Department on 28 February 2018. There is no evidence before the Tribunal to support that an application has been subsequently lodged on behalf of Master Jaibir Singh nor a decision made by the Department in regard to Master Jaibir Singh. Therefore, at the time the review application was lodged with the Tribunal, no relevant decision had been made by the Department in regard to Master Jaibir Singh.
As no reviewable decision in regard to Master Jaibir Singh had been made at the time the review application was lodged, it follows that the review application on behalf of Master Jaibir Singh was not properly made and as such the Tribunal does not have jurisdiction in regard to Master Jaibir Singh.
DECISION
The Tribunal affirms the decision not to grant the visa applicants Temporary Business Entry (Class UC) visas.
Karen McNamara
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.

[2022] AATA 1681

31 May 2022

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Jurisdiction

Procedural Fairness

Judicial Review

Statutory Construction

Natural Justice