Donnadieu (Migration)

[2021] AATA 3754

Donnadieu (Migration) [2021] AATA 3754 (15 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yoann Roland Raymond Donnadieu
Ms Loubna Ben Hmad

CASE NUMBER:  1834360

HOME AFFAIRS REFERENCE(S):          BCC2018/1231562

MEMBER:Wan Shum

DATE:15 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 15 September 2021 at 2:56pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship stream – position of Wall and Floor Tiler – no approved nomination – decision under review affirmed

LEGISLATION

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

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 applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visa on 14 March 2018.

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. Manettia Pty Ltd, who was the standard business sponsor, had made an application for approval of the nomination of an occupation in relation to the first named applicant. The delegate decided not to approve the nomination on the basis that the delegate was not satisfied that the position of wall and floor tiler was genuine.

5. As a consequence, on 1 November 2018 the delegate refused to grant the visas to the applicants on the basis that cl 457.223(4)(a) was not met because the nomination in relation to the first named applicant had not been approved.

6. Both Manettia Pty Ltd and the applicants sought review of the decisions and were represented in relation to the review by the same registered migration agent.

7. The Tribunal wrote to the applicants on 19 August 2021 inviting them to a hearing. Then, on 31 August 2021, the Tribunal wrote to the 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. That information was that the Tribunal, differently constituted, affirmed the decision not to approve the nomination made by Manettia Pty Ltd on 31 March 2021. The relevance of the information was explained that applicant was not the subject of an approved nomination and the Tribunal will find that the requirements of cl 457.223(4)(a) have not been met and will affirm the decision under review.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 14 September 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicants did not respond within the prescribed period and no extension has been granted. In these circumstances, s 359C 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 applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments, noting that the applicants have departed Australia.

10. In respect of this application for review, the nomination has not been approved and the requirements of cl 457.223(4)(a) are therefore not met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. Given this, the Tribunal must affirm the decision under review.

    DECISION

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

    Wan Shum
    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.