Deyophin (Migration)

[2018] AATA 4334

Deyophin (Migration) [2018] AATA 4334 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mary Flarida Deyophin
Mr Deyophine Jenaten
Mr Amal Deyophine Jenaten
Mr Roshan Deyophine Jenaten

CASE NUMBER:  1617202

DIBP REFERENCE(S):  BCC2015/2694561

MEMBER:Antonio Dronjic

DATE OF ORAL DECISION:  30 August 2018 at 11.45

DATE OF WRITTEN STATEMENT:         30 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2018 at 12:09pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Not the subject of an approved nomination – Decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulations 1994, Schedule 2, cl 457.223(4)(a)

CASES

MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233

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 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 15 September 2015.

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 visas on 30 September 2016 on the basis that the first named applicant did not meet cl.457.223 (4)(a). On 2 March 2016, the department refused the nomination application lodged by D.J Zappala & S Zappala, nominating the first named applicant for a position of a Customer Services Manager within the business.

5. The applicants applied to the Tribunal on 17 October 2016, and provided a copy of the primary decision record with the applications. The applicants were represented by a migration agent.

6. At the hearing on 30 August 2018, the Tribunal made an oral decision. The following is the written record of those reasons.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 24 May 2018, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicants comment on or response to the following information:

   ·Your visa application was refused by the Department on 30 September 2016 because the delegate found that the first named applicant has failed to meet the requirements of cl.457.223 (4)(a).

   ·The nomination application lodged with the department by the first named applicant’s prospective employer, D.J Zappala & S Zappala was refused by the department on 2 March 2016.

   ·D.J Zappala & S Zappala applied for review of the decision made by the Department not to approve business nomination application to this Tribunal on 14 March 2016.

   ·On 18 May 2018, this Tribunal affirmed the decision not to approve nomination made by D.J Zappala & S Zappala.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the first named applicant does not meet the criteria contained within clause 457.223(4)(a).

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the secondary applicants the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.321 requires the secondary applicants to be members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

   You are invited to give comments on or respond to the above information in writing…

9. The invitation was sent to the applicants’ representative’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 7 June 2018, 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 24 May 2018.

10. On 7 June 2018, the first named review applicant wrote to the Tribunal stating that she was not properly advised and that documents required for the review of nomination application were not provided to the Tribunal.

11. Relying on the authority in MIAC v Saba Bros Tiling Pty Ltd [2011] FCA 233, the Tribunal accepts that there is no minimum requirement for a ‘response’ to a s.359A invitation and that any reply directed to the information itself will constitute a response.

12. On 13 June 2018, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 7 August 2018.

13. On the applicants’ request, and considering the medical evidence provided with the request, the hearing was cancelled and the new one scheduled for 30 August 2018.

14. On 30 August 2018, the applicant submitted:

    ·A copy of the Balance Sheet for her sponsoring employer;

    ·A copy of the applicant’s payslips; and

    ·A copy of the Partnership Financial Statements for the year ending 30 June 2016 and 2017.

15. The first named applicant appeared before the Tribunal on 30 August 2018 to give evidence and present arguments

16. The Tribunal explained to the applicant that, in order to be successful with the review application, she must be the subject of an approved nomination by an approved sponsor for the purposes of meeting cl.457.223(4)(a).

17. She confirmed in her evidence that she receives a letter from this Tribunal dated 24 May 2018 issued pursuant to s.359A and that she provided her response to this letter on 7 June 2018.

18. She stated in her evidence that she is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased. 

19. Based on the evidence before it, the Tribunal finds that the first named applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased. The Tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a).

20. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the secondary applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

21. 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

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

    Antonio Dronjic
    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.