De Biagi (Migration)

[2021] AATA 3515

De Biagi (Migration) [2021] AATA 3515 (1 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Gessica De Biagi
Mr Valerio Bassi

CASE NUMBER:  1815293

HOME AFFAIRS REFERENCE(S):          BCC2017/982336

MEMBER:Stavros Georgiadis

DATE:1 September 2021

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 01 September 2021 at 4:39pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – position of Massage Therapist – no approved nomination – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, Schedule 2, cls 457.223, 457.321

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 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).

2. The visa applicants applied for the visa on 10 March 2017.

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 (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.

4. The delegate refused to grant the visas on 24 May 2018 on the basis that cl 457.223(4)(a) was not met because there was no approved nomination in respect of the nominated position of Massage Therapist (ANZSCO 411611).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a) for the grant of the visas in respect of all applicants.

   Requirement for an approved nomination

7. 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.

8. On 15 February 2021, the Tribunal wrote to the applicants inviting comment or response, in accordance with s 359A of the Act, to certain information which would, subject to their comments or response be the reason, or a part of the reason, for affirming the decision under review - as follows:

   … “ The application for approval of the nominated position made by The Trust for Clear Image Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.

   This information is relevant to the review because it is a requirement for the grant of
   the visa that the position specified in your visa application is the subject of an
   approved nomination.

   If we rely on this information in making our decision, we may find that the position
   specified in your visa application is not the subject of an approved nomination. This
   would mean that you do not satisfy a requirement for the grant of the visa and that we
   must affirm the decision that is under review.

   You are invited to give comments on, or respond to, the above information in writing. Your comments or response should be received by 1 March 2021. …”

9. The applicants did not provide any comment or response within the time allowed.

10. On 5 August 2021, the Tribunal further wrote to the applicants inviting comment or response, in accordance with s 359A of the Act, to certain information which would, subject to their comments or response be the reason, or a part of the reason, for affirming the decision under review as follows:

    … “ The validity of a non disclosure public interest s 376 Certificate, dated 4
    December 2019 (copy provided) relating to potentially adverse information
    received by the Department from an anonymous source alleging the Visa
    Applicant’s false occupation and the Visa Applicant working more hours per
    week than the declared 20 hours of work per week.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 19 August 2021. …”

11. Again, the applicants did not provide any comment or response in the time allowed, or at all.

12. The review applicants have not provided the information within the prescribed period and no extensions have been requested or granted. In these circumstances, s.359C of the Act applies and pursuant to s.360(3), the review applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicants have no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

13. The Tribunal is satisfied that the invitation to provide information was sent to the correct email and was received by the authorised recipient. To date, the requested information has not been provided and the applicants have not made any contact with the Tribunal to indicate that the information is forthcoming. The Tribunal is not required to delay indefinitely making its decision. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the information.

14. On 17 September 2020, the Tribunal affirmed the decision under review not to approve the nomination of an occupation of Massage Therapist (ANZSCO 411611) in relation to the primary applicant lodged by The Trust for Clear Image Trust in the related AAT casefile 1803899 on the basis of the reasons set out in the Decision Record of that date.  

15. Having considered the available evidence before it discussed, the Tribunal finds that the nomination of an occupation in relation to the primary applicant has not been approved as is required under cl 457.223(4)(a).

16. Therefore, the criteria in cl 457.223(4) are not met.

17. 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 applicants would be able to satisfy the specific criteria for those streams. The Tribunal therefore, will affirm the refusal of the visas for all applicants including the second named applicant as claimed member of the same family unit as another person (the primary applicant) who holds a subclass 457 visa having satisfied primary criteria for it: [cl 457.321].

    DECISION

18. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Stavros Georgiadis
    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.