Dunpec Pty Ltd (Migration)

[2018] AATA 2032

Dunpec Pty Ltd (Migration) [2018] AATA 2032 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Dunpec Pty Ltd

VISA APPLICANT:  Mr Muhammad Awais Azam KHAN

CASE NUMBER:  1703586

DIBP REFERENCE(S):  BCC2016/2788812

MEMBER:Denise Connolly

DATE:18 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2018 at 3:48pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Subject of an approved nomination – No comments or response in the prescribed period – No approved nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363A
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 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 23 August 2016. 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.

3. The delegate refused to grant the visa on 14 February 2017 on the basis that cl.457.223(4)(a) was not met because the visa applicant was not the subject of an approved nomination.

4. The applicants were represented in relation to the review by registered migration agents.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

6. 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 visa applicant by a standard business sponsor that has not ceased.

7. The visa applicant was nominated by Dunpec Pty Ltd (Dunpec). The Department did not approve Dunpec’s nomination application made in respect of the visa applicant and accordingly the visa application was refused by the delegate. Dunpec applied for review of the decision not to approve the nomination.  On 9 April 2018 the Tribunal affirmed the decision not to approve the nomination.

8. On 10 April 2018 the visa applicant contacted the Tribunal directly asking about the progress of the review and an estimation of the hearing date. A case officer let him know that the matter had been allocated to a Tribunal member.

9. On 11 April 2018 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting any comment on or respond to, in writing, information that it considered would be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the refusal of the nomination application by Dunpec. The Tribunal explained this was relevant to the requirements in cl.457.223(4)(a) which requires the visa applicant to be the subject of an approved nomination. The response was due on 26 April 2018. The review applicant did not respond by the due date and an extension of time was not sought.

10. On 1 May 2018 the Tribunal received a call from a different registered migration agent who advised that has been appointed to act. He sent an appointment of representative form and a s.362A request for access to written material. He provided a written submission on 2 May 2018 in which he states that the first the review applicant knew of the matters was on 26 April 2018 when the former migration agent emailed the Tribunal’s decision in relation to the nomination and the s.359A letter dated 11 April 2018. He indicated that the review applicant was of the view it could have provided significant responses in relation to the nomination decision had it been aware of the Tribunal’s request for information made on 16 February 2018. The representative asked that the Tribunal postpone any further action until he had an opportunity to review the material and advise the review applicant. The Tribunal provided access to the written material on 9 May 2018 and the Tribunal agreed to wait until 18 May 2018 for any further information before making its decision.

11. On 18 May 2018 the representative wrote to the Tribunal advising that the material had been examined and the review applicant had been advised. The representative advised that the review applicant does not intend to place any additional evidence or submission before the Tribunal. The representative confirmed that the review applicant understands the member will now proceed to finalise the case.

12. The Tribunal notes the s.359A invitation was sent to the authorised recipient using the last email provided in connection with the review and advised that, if the comments were not provided in writing by 26 April 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. The Tribunal is satisfied that the s.359A invitation was properly sent to the authorised recipient. The review applicant did not provide comments or a response within the prescribed period and no extension was sought or granted before that period lapsed. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is 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 the review applicant to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal did agree however to postpone its decision to allow for the newly appointed representative to consider the written material and advise the review applicant and for further information to be provided. The current representative has advised that the review applicant does not intend on providing further evidence and understands the Tribunal will proceed to a decision.

14. The evidence before the Tribunal indicates that there is not an approved nomination of an occupation in respect of the visa applicant by a standard business sponsor that has not ceased. For these reasons the requirements of cl.457.223(4)(a) are not met by the visa applicant and the Tribunal must affirm the decision.

15. 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

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

    Denise Connolly
    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.