Dhaliwal (Migration)

[2017] AATA 2227

Dhaliwal (Migration) [2017] AATA 2227 (31 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Parminder Singh Dhaliwal

CASE NUMBER:  1514531

DIBP REFERENCE(S):  BCC2015/1275830

MEMBER:Karen Synon

DATE:31 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 31 October 2017 at 12:40pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 – No approved nomination –Failed to attend tribunal hearing

LEGISLATION

Migration Act 1958, s 65, 359A, 362B(2)

Migration Regulations 1994, Schedule 2, cl.457.223

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 3 May 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 visa on 6 October 2015 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. The applicant applied for review of the primary decision on 27 October 2015 and provided a copy of the department’s decision.

6. On 4 September 2017 Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review. In particular, the Tribunal raised information indicating that the review of a decision of the department not to approve a nomination in respect of him made by BAZ EXPRESS PTY LTD ATF BAZ UNIT TRUST, his proposed nominator, was affirmed by the Tribunal on 30 August 2017. Further, there is no information contained on the Department’s file records that he is the subject of an approved nomination by a standard business sponsor. The applicant was advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, he must be the subject of an approved nomination by a standard business sponsor. Comments or a response in writing were invited by 18 September 2017

7. In response on 18 September the applicant request additional time to “explore [his] potential prospects” writing he was stressed  because “all his sincere dedication and hard work [he has] invested over the years with respect of [his] qualifications appear to is (sic) at a great risk of amounting to virtually nothing”.  He stated that he is looking forward to lodging another 457 application with another sponsor.

8. In response to this request, the Tribunal delaying scheduling a hearing for 6 weeks and a tribunal officer telephoned the applicant to advise that the hearing would not be held for 6 weeks in order to allow him additional time to explore his options.

9. On 19 September 2017 the Tribunal wrote to the applicant advising it had considered all the material before it relating to the application but was unable to make a favourable decision on that information alone.  The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 30 October 2017.  In this invitation the applicant was asked to provide, by 23 October 2017, “any additional documents or information that you may wish to rely on during the hearing”.

10. The applicant was further relevantly advised:

    If you do not attend the scheduled hearing, we may make a decision on the review without taking any further action to allow or enable you to appear before us or may dismiss your application for review without any further consideration of the application or the information before us.

11. No response was received to the hearing invitation and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

12. Section 362B(2) provides the Tribunal with a discretion to reschedule an applicant's appearance before it or to delay its decision on the review in order to enable the appearance to be rescheduled. The Tribunal has therefore considered whether it would be appropriate in the circumstances of this case to exercise this discretion in the applicant's favour.

13. The Tribunal notes the visa was refused on 6 October 2015 and the review application was lodged on 27 October 2015.  The applicant has not provided any substantive submissions to the Tribunal since lodging the application for review.

14. Further, in response to the s.359(A) invitation, the applicant requested additional time to explore his potential options and that he was looking forward to lodging another 457 application with another sponsor.  After receiving this response a tribunal officer telephoned him to advise that the hearing would not be held for 6 weeks in order to allow him additional time to explore his options.  However, in the 6 weeks since then, no communication has been received from the applicant.

15. Finally, the Tribunal has waited over 24 hours after the scheduled hearing to see if any explanation or medical evidence was provided for why the applicant did not appear before the Tribunal as scheduled.  None has been provided.

16. In these circumstances, and for the reasons set out below, the Tribunal has determined not to exercise its discretion under s.362B(2) to enable the applicant’s appearance to be re-scheduled. Therefore, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

17. For the following reasons, the Tribunal has decided that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

18. 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

19. 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.

20. As detailed to the applicant in accordance with s.359A, the review of a decision of the department not to approve a nomination in respect of him made by BAZ EXPRESS PTY LTD ATF BAZ UNIT TRUST, his proposed nominator, was affirmed by the Tribunal on 30 August 2017 and further there is no information contained on the Department’s file records that the applicant is the subject of an approved nomination by a standard business sponsor.

21. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

22. For these reasons the requirements of cl.457.223(4)(a) are not met.

23. 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

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

    Karen Synon
    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.