Douglas (Migration)

[2019] AATA 2080

Douglas (Migration) [2019] AATA 2080 (8 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Patrick Douglas

CASE NUMBER:  1724944

DIBP REFERENCE(S):  BCC2017/1145797

MEMBER:Karen Synon

DATE:8 May 2019

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 08 May 2019 at 10:26am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – non-appearance before the Tribunal – application dismissed – representative’s error – application reinstated – judicial review of nomination lodged – decision on the papers – subject of an approved nomination – nomination application refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 24 March 2017.

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 applicant was represented in relation to the review by his registered migration agent.

5. On 8 March 2019 the applicant was invited to a hearing on 1 April 2019 to give evidence and present arguments.  The applicant did not appear before the Tribunal at the time and place at which he was scheduled to appear.

6. On 2 April 2019, after waiting over 24 hours and in the absence of any valid explanation or medical certificate to be provided as to why the applicant did not attend the hearing, the Tribunal dismissed the application on the basis that the applicant did not attend the scheduled hearing and the hearing invitation had advised the applicant that if he did not attend the hearing, the Tribunal may dismiss the application for review.  The applicant was advised that he could apply to the Tribunal by 16 April 2019, for reinstatement setting out the reasons why he failed to appear at the hearing.

7. On 15 April 2019 the applicant, via his representative, applied for reinstatement of the decision for the following reasons:

   I refer to the above matter which was listed for hearing on April, and where unfortunately Mr Douglas failed to attend.

   Mr Douglas’s failure to attend was brought about by an administrative error; an omission on my part to diarise the hearing date.  Once again I apologise to the Tribunal and on behalf of Mr Douglas.  An omission such as this has never happened before, and we have taken steps administratively to ensure it won’t happen again.

   On Mr Douglas’s behalf I seek reinstatement of the matter before the Tribunal.

   By way of background, Mr Douglas’s visa application was refused because the associated nomination was refused.  The nomination refusal was affirmed by the Tribunal on 5 April 2018.  An application for judicial review of the nomination has been lodged with the Federal Circuit Court and our intention is to join the visa application refusal to the existing Federal Circuit Court matter.

   As there is no approved nomination in this matter, the Tribunal has no choice but to affirm the visa refusal.

   On behalf of Mr Douglas, I would be grateful if the matter is reinstated and the visa refusal affirmed on the basis there is no approved nomination in place.

8. On 29 April 2019 the Tribunal decide to reinstate the application for review relevantly noting:

   The applicant’s representative stated she had incorrectly recorded the hearing date and had therefore not advised the applicant to attend the hearing.  While the actions of the representative appear to be unprofessional, the Tribunal is of the view that the applicant should not be disadvantaged because of his representative’s poor record keeping.

9. Following the Tribunal’s reinstatement decision, the applicant was again invited to another hearing on 9 May 2019.

10. On 3 May 2019 the Tribunal received the following relevant information from the applicant via his representative:

    …Mr Douglas instructs me that, given the Tribunal has no choice but to affirm the visa refusal (as the nomination refusal has been affirmed), he is happy if the Tribunal would proceed to a decision on the papers.

11. Further on 7 May 2019 the hearing invitation was returned which indicated that the applicant would not be attending the hearing.  In a covering letter the applicant’s representative wrote “I confirm that the applicant respectfully declines the invitation to the hearing and requests the Tribunal to make a decision “on the papers”.

12. As the Tribunal is satisfied that the applicant has consented to it deciding the review without him appearing before it, it has proceeded to decision: s.360(2)(b).

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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

15. 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.

16. The primary decision records that on 28 July 2017 a decision was taken by the department to refuse the nomination lodged in respect of the applicant by AUSTRALIA HERE WE COME.

17. No information has been provided to the Tribunal that the applicant has subsequently been the subject of any approved Subclass 457 nomination.  Further the applicant’s representative, on his behalf, clearly stated on 15 April 2019 that “as there is no approved nomination in this matter, the Tribunal has no choice but to affirm the visa refusal” and again on 3 May 2019 that “given the Tribunal has no choice but to affirm the visa refusal (as the nomination refusal has been affirmed), [the applicant] is happy if the Tribunal would proceed to a decision on the papers.

18. 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.

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

20. 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

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

    Karen Synon
    Member

    
    

    ATTACHMENT  -  Clause 57.223 (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.