Dhir (Migration)

[2018] AATA 2264

Dhir (Migration) [2018] AATA 2264 (22 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Payal Dhir
Mr Amit Dhir
Master Sparsh Dhir

CASE NUMBER:  1611787

DIBP REFERENCE(S):  BCC2015/2135487

MEMBER:R. Skaros

DATE:22 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2018 at 12:30pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temp Work (Skilled)) – Subject of an approved nomination – List of 457 occupations – Association of former representative with sponsor – No approved nomination – Decision under review affirmed remitted

LEGISLATION
Migration Act 1958, ss 65, 375A, 359AA
Migration Regulations 1994, Schedule 2 cl 457.223

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 26 July 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 25 July 2016 on the basis that cl.457.223(4)(a) was not met because nomination in relation to the applicant, which was lodged by [Company 1] in the occupation Wholesaler, was not approved.  

5. A copy of the delegate’s decision record was provided with the application for review. The applicants were represented in relation to the review by their registered migration agent, Mr Sukhdeep Sandhu. On 15 June 2017 the Tribunal wrote to the applicants advising them that their representative’s registration with the Office of the Migration Agents Registration Authority (OMARA) had lapsed on 1 June 2017 and that copies of all of the Tribunal’s correspondence to their representative would also be sent to them until they either appoint another representative or advise the Tribunal that they wish to cancel their appointment of Mr Sandhu. On the same day the Tribunal received a completed change of contact details form the applicant advising that she is withdrawing the authority of her migration agent, whom she identified as [Mr A], and that she wished all correspondence to be sent directly to her. The Tribunal notes that [Mr A] was identified as the representative in visa application when it was lodged with the Department. In any case, the Tribunal accepts that the applicant has properly notified the Tribunal that she wished to represent herself in the review and that all correspondence should be sent only to her.

6. During the review, the Tribunal received information from the Department which was covered by a non-disclosure certificate under s.375A. The certificate states that disclosure of the information would be contrary to public interest because the allegations and the source had an expectation of anonymity and that information in the allegations had the potential to identify the source. The Tribunal accepts that the certificate provides a valid public interest reason for non-disclosure, however, the information was potentially relevant to the issue in the review and the Tribunal considered it appropriate to discuss the allegations with the applicants at the hearing and give them an opportunity to respond. The allegations suggested that [Mr A] and his spouse were offering to sponsor people for 457 visas for large sums of money through false companies, which included a consulting company, migration company and [Company 1].

7. The applicants appeared before the Tribunal on 14 September 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The detail of the Tribunal’s discussions with the applicants, including in relation to information that was the subject of a non-disclosure certificate, is set out in some detail below.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. The applicant was nominated by [Company 1] in the occupation of Wholesaler. That nomination was refused and consequently the visa applications were refused.  [Company 1] applied for review of the decision not to approve the nomination, however, that review was subsequently withdrawn.

11. On 19 June 2017, the Tribunal received email correspondence from the former agent’s office informing the Tribunal that the business ([Company 1]) had decided to withdraw the review of the nomination application in relation to the applicant. The representative confirmed that they no longer represent the applicants in relation to their review and requested all correspondence to be sent directly to the applicant. The Tribunal notes that some attempts were later made to retract the withdrawal of review of the nomination however the Tribunal in that case considered that a valid withdrawal had been received by an authorised person and found that it did not have jurisdiction in that matter.

12. On 18 July 2017 the Tribunal wrote to the applicants and invited them to provide information regarding the requirement in cl.457.223(4)(a) which requires that a nomination of an occupation by a standard business sponsor in relation to the applicant has been approved.

13. On 29 July 2017 the applicant wrote to the Tribunal advising that her sponsor, [Company 1], will lodge a new nomination application for her. The applicant provided a copy of a letter from another Director of [Company 1], advising that they are keen to retain the applicant and that they had earlier requested the Tribunal not to consider the withdrawal authorisation and they required more time to lodge a new nomination.

14. On 14 August 2017 the applicant provided a copy of an acknowledgement of a nomination application made by a different entity, Budget Enterprises Pty Ltd, on 14 August 2017 noting the applicant as the nominee. The applicant advised the Tribunal that Budget Enterprises Pty Ltd is an approved sponsor and requested the Tribunal to await the outcome of the new nomination to be assessed by the Department.

15. At the hearing, the Tribunal discussed with the applicant the requirement in cl.457.223(4)(a). She confirmed that she was initially nominated by [Company 1] in the occupation of Wholesaler. The Tribunal noted that the occupation of Wholesaler was no longer on the 457 list. The Tribunal discussed the information before it indicating that the former employer wanted to reinstate the previous nomination and noted that even if that nomination was not withdrawn it would not have been approved because it was not on the applicable list of 457 occupations. The applicant gave evidence that another nomination for a different occupation has been lodged by Budget Enterprises Pty Ltd. She stated that the nomination was for the position of Transport Company Manager. When asked if that company was associated with [Mr A] or his spouse, the applicant indicated that it was not.

16. The Tribunal discussed with the applicant the allegations received suggesting their former agent was charging large sums of money to sponsor people for 457 visas through his companies, one of which was their former sponsor [Company 1]. The applicants denied any involvement and indicated that they do not know anything about these allegations.

17. The applicant indicated that [Mr A] was not associated with the new sponsor, Budget Enterprises Pty Ltd. She stated that she does not know the full names of the directors of Budget Enterprises Pty Ltd and that she applied for the positon after seeing a post on Gumtree. She stated that she attended an interview for the position of Transport Manager and was offered the role.  The Tribunal noted that the occupation of Transport Company Manager had a number of caveats, requiring the business to have a certain level of turnover and employ a minimum number of employees. The applicant stated that Budget Enterprises is a large company which has over 100 vehicles, including loading and unloading trucks and she will be managing the workers, transport schedule and logistics. She stated that she has the requisite experience for the position which she acquired in India. The secondary applicant gave evidence that their last nomination was arranged by [Mr A] and that he has since chosen to withdraw that nomination.

18. It was not necessary for the Tribunal to put the allegations to the applicants using the provisions of s.359AA as the information in the allegations appear to be relevant to the previous sponsor, [Company 1], and there is no evidence before the Tribunal to suggest that Budget Enterprises Pty Ltd is associated with [Mr A] or is not a genuine business. After considering the information before it, including the applicants’ evidence regarding the operations of Budget Enterprises Pty Ltd, the Tribunal agreed to await the outcome of the nomination made by Budget Enterprises Pty Ltd.

19. On 30 April 2018 the Tribunal received information from the Department indicating that the nomination made by Budget Enterprises Pty Ltd in respect of the applicant had been refused.

20. On 1 May 2018 the Tribunal wrote to the review applicants pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the refusal of the nomination made by Enterprises Pty Ltd in respect of the applicant which the Tribunal explained was relevant to the requirements in cl.457.223(4)(a). The Tribunal explained that if it relied on the information it may find that the applicant is not the subject of a current approved nomination and that the decision under review may be affirmed. 

21. The invitation was sent to the last email provided in connection with the review and advised that, if the comments were not provided in writing by 15 May 2018 the Tribunal may make a decision on the review without taking further steps to obtain the comments. While the Tribunal did not receive a direct response from the applicants in relation to the information set out in the s.359A letter, it did receive a copy of an email sent to another authority on 4 May 2018 indicating that the applicants were victims of fraud by their former migration agent [Mr A], who is currently under investigation, to whom they paid a large sum of money.    

22. It is not clear to the Tribunal how the applicant’s claim of fraud by the former agent is relevant to the issue in the review, which is whether there is a current approved nomination by a standard business sponsor in relation to the applicant. The applicants were aware that a 457 visa application was lodged on their behalf by their former representative, they were on notice that the nomination was not approved and they chose, during the processing of review, to represent themselves before the Tribunal and demonstrated at the hearing that they were aware that the issue in their case was whether they had an approved nomination. The Tribunal agreed to await the outcome of a further nomination as requested by the applicant, however, that nomination has now been refused. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

23. As the nomination of an occupation in respect of the applicant has not been approved, the Tribunal finds that the applicant does not meet the requirements of cl.457.223(4)(a). The decision in respect of the applicant must therefore be affirmed.

24. There is no information before the Tribunal which suggests that any of the secondary applicants meet the primary criteria for the visa. The secondary applicants applied for the visa on the basis of being members of the first named applicant’s family unit. As the first named applicant does not meet the requirements for the visa, the Tribunal must also affirm the decision in respect of the secondary applicants.

25. 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

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

    R. Skaros
    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.