Esmaeilzadeh (Migration)

[2018] AATA 3102

Esmaeilzadeh (Migration) [2018] AATA 3102 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pasha Esmaeilzadeh

CASE NUMBER:  1619249

DIBP REFERENCE(S):  BCC2016/1095963

MEMBER:Danielle Galvin

DATE:18July 2018

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 18 July 2018 at 2:50pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Skilled Work) – Standard business sponsorship – Applicant not subject to an approved nomination – Practice and Procedure – Lost entitlement to a hearing – Decision made on review – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359A, 359C,360, 363A
Migration Regulations 1994 (Cth), 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 applicant applied for the visa on 14 March 2016.

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 26 October 2016 on the basis that cl.457.223(4)(a)(i) was not met because the nomination of the occupation in relation to the applicant had not been approved under section 140GB of the Act.

5. The applicant, Pasha Esmaeilzadeh, was represented in relation to the review by his registered migration agent.

6. On 8 May 2018 the Tribunal wrote to Mr Esmaeilzadeh pursuant to s.359A of the Act, advising him that the application for approval of the nominated position made by Picasso Building and Renovations PTY LTD (the nominator) was refused by a delegate of the Minister for Immigration and that the nominator had sought a review of that decision. He was advised that the decision was affirmed by the Tribunal and the nominator’s application for the nominated position had not been approved. The letter further advised him that as the nominator’s application for the nominated position had not been approved this information was relevant to the review he was seeking as it is a requirement for the grant of his visa application that the position specified is the subject of an approved nomination. The applicant was invited to provide information or comments about their position in relation to this information in writing.

7. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comment was not provided in writing by 22 May 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information or comment and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. Mr Esmaeilzadeh has not provided the information or comment within the prescribed period and no extension of time was sought or granted to do so. In these circumstances, s.359C applies and pursuant to s.360(3) Mr Esmaeilzadeh is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if he has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information or comment.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a)(i).

    Requirement for an approved nomination

11. 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.

12. In the application to the department dated 14 March 2016 Mr Esmaeilzadeh stated that the sponsoring employer was Picasso Building and Renovations Pty Ltd (“the sponsoring employer”). He further stated that that he was employed as a cabinet maker and this was the position the subject of the visa application.

13. The sponsoring employer, the nominator, as a standard business sponsor, failed in its application to for approval of the nomination of this occupation. The consequence is that the primary applicant is not the subject of an approved nomination at the time that this application is being decided and therefore the requirement of cl.457.223(4)(i) has not been met.

14. 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.

15. The review applicant’s migration agent advised the Tribunal by telephone on 18 November 2016 that the secondary applicant was not seeking a review of the Department’s decision and therefore the Tribunal has made no findings or orders in relation to that applicant.

    DECISION

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

    Danielle Galvin
    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.