De Silva (Migration)

[2019] AATA 5563

De Silva (Migration) [2019] AATA 5563 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Epala Wattage Bathiya Madura Kalyana De Silva
Miss Amosha Ilmee Ipalawatte
Master Sanush Mayuka Ipalawatte
Mrs Shyamali Lekha Amarawardana De Silva

CASE NUMBER:  1710885

DIBP REFERENCE(S):  BCC2016/2089245

MEMBER:Danielle Galvin

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 2:01pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – nominator not approved sponsor – application for refusal decision review withdrawn – no response within prescribed period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360(3), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

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 dated 1 May 2017, to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 18 June 2016. 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.

3. The delegate refused to grant the visas on the basis that cl.457.223(4)(a) was not met because the nominator, SUPEROO GBS VICTORIA PTY LTD, was not an approved sponsor. On 31 March 2017 the department had refused to approve the nomination by SUPEROO GBS VICTORIA PTY. The Tribunal notes that a review by the nominator of the Department’s decision to refuse the nomination made on 27 September 2018 was withdrawn on 25 September 2019 and therefore there is no approved nomination in place in relation to the first named applicant.

4. The Tribunal wrote to the applicant and secondary applicants on 16 October 2019 and advised them that there was no approved nomination in place, the nominator’s review having been withdrawn. The applicants had until 30 October 2019 in which to respond to this letter with comments or a response to the information. The letter was sent to the address provided by the applicants in the review application.

5. On 31 October 2019, one day after the response date had closed the agent for the applicants requested an extension of time of 7 days in which to comply with the request. The Tribunal is not empowered to allow an extension as the time in which to respond to an invitation when the prescribed time in which to respond has expired. In any event the Tribunal has not received any further information from the applicants or the agent to date.

6. Given that the applicants did not provide comments or respond within the prescribed period s.359C of the Act applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of ss.360(3), 359C and 363A is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear. The Tribunal is of the view that the applicants have had a reasonable time in which to provide any information, upon which they might rely in support of the review. In these circumstances, the Tribunal has decided to proceed to make a decision.

7. As the primary applicant is not the subject of an approved nomination at the time of this decision, the Tribunal cannot be satisfied that the requirements of cl.457.223 (4)(a) have been met. Therefore the primary applicant does not satisfy the primary criteria for the grant of the visa. There is no requirement to assess the application as against any other criteria as all the criteria must be met and the failure to meet one of the criteria is fatal to the application.

8. There are secondary criteria and one of those is found under cl.457.321 which requires an applicant to be a member of the family unit of a person (the primary applicant) who having met all of the primary criteria is the holder of a 457 visa. There is no evidence before the Tribunal that the primary applicant has satisfied the secondary criteria by establishing that he is a member of the family unit of the holder of a subclass 457 visa and therefore he does not meet cl.457.321. There is no evidence before the Tribunal that the secondary applicants satisfy the primary criteria for the grant of a 457 visa. Therefore the primary applicant also fails to satisfy the requirements of cl.457.321.

9. Accordingly the Department’s decision in relation to the primary applicant is affirmed.

10. The secondary applicants, Amosha IImee Ipalawatte, Sanush Mayuks Ipalawatte and Shyamali Lekha Amarawardana De Silva, made no claims against the primary criteria for the grant of a 457 visa and there is no evidence that they satisfy the primary criteria, therefore they do not meet cl.457.223(2)(b) or cl.457.223(4)(a) of the Regulations. There is also an absence of evidence that they meet the secondary criteria and therefore do not satisfy cl.457.321.

11. For these reasons, the Tribunal has concluded that the matter decision under review should be affirmed.

    DECISION

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

    Danielle Galvin
    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.