FATFAT (Migration)

[2019] AATA 1822

FATFAT (Migration) [2019] AATA 1822 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Yasser Fatfat
Mrs Joumana Chok
Master Ahmad Fatfat
Master Nizar Fatfat
Master Yakub Fatfat
Miss Fatema Fatfat

CASE NUMBER:  1700507

DIBP REFERENCE(S):  BCC2016/2816846

MEMBER:Alison Mercer

DATE:3 June 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 June 2019 at 12:25pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A letter – not entitled to appear before the Tribunal – Schedule 3 criteria – application lodged outside of relevant timeframe – subject of an approved nomination – nomination ceased 12 months after it was approved – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cls 457.211, 457.223

CASES
Yang v MIAC [2010] FMCA 890

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 25 August 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 22 December 2016 on the basis that cl.457.211 was not met.  This clause required that the first named applicant (the primary applicant) met the relevant Schedule 3 criteria as he had applied for the subclass 457 visa more than 28 days after he had ceased to hold a substantive visa. The delegate found that the applicant’s last substantive visa expired on 1 July 2015 but that he did not apply for the subclass 457 visa until 25 August 2016.  The delegate acknowledged the applicant’s explanation that of his wife’s unexpected pregnancy and her subsequent post-natal depression, which caused him not to check whether his previous visa had expired, but just assume it was valid for 4 years, as his previous one had been. The primary applicant also provided a letter from a psychologist about these events, and the deaths of the primary applicant’s cousin and nephew and his brother’s death, which had contributed to his stress and anxiety. However, the delegate did not consider that the applicant ceased to hold a substantive visa for reasons beyond his control.  The delegate refused to grant visas to the second, third, fourth, fifth and sixth applicants (the primary applicant’s wife and children) on the grounds that they did not meet the secondary criteria to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 10 January 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Nazim El Bardouh, as their representative and authorised recipient for correspondence.

6. On 15 March 2019, the Tribunal wrote to the applicants, via their agent, pursuant to s.359A of the Act, to invite them to comment on information that was potentially adverse to their case. The Tribunal advised them that the Department’s records indicated that the primary applicant was no longer the subject of an approved employer nomination, as the nomination of him made by MZK Constructions Pty Ltd had expired on 7 November 2017. The Tribunal further advised that the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018, and that, among other things, they repealed and replaced the criteria for nominations relating to proposed subclass 457 visas applicants, as well as repealing the subclass 457 visa category, which was closed to new applications.

7. The Tribunal advised the applicants that this information was relevant to the review because it suggested that the primary applicant was not the subject of an approved nomination and that a new nomination for approval could not be made. It further stated that if it relied on this information, it might find that the primary applicant was not the subject of an approved nomination, and this would be the reason (or part of the reason) for affirming the decision under review. The applicants were invited to respond to, or comment on, this information by 29 March 2019. They were advised that they could seek an extension of time to do so, but should request this before 29 March 2019 and provide reasons. They were further advised that if they failed to comment or respond by the due date, they would lose any entitlement they had to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain their response or comments.

8. The Tribunal is satisfied that the above letter was sent via email to the email address nominated by the applicants’ agent, who is their nominated recipient for correspondence.  There is no evidence that it was not received or could not be sent.

9. The Tribunal did not receive a response or request for an extension of time to respond from the applicants or their agent by 29 March 2019. It has had no further communication from them since that time.

10. The applicants have not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicants are not entitled to appear before the Tribunal. The Tribunal has no power to permit them to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where there no evidence that the primary applicant has the required approved nomination and the applicants did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicants’ comments on or response to the information set out in the Tribunal’s letter of 15 March 2019.

11. For the following reasons, the Tribunal has concluded that the decisions under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The initial issue in the present case was whether the primary applicant met the Schedule 3 criteria applicable to him, as required by cl.457.211. However, developments since the time the applicants made their visa applications have meant that another legal criterion has become significant and determinative in their case.

    Requirement for an approved nomination

13. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the primary applicant by a standard business sponsor that has not ceased.

14. The Department’s records indicate that at the time that the primary applicant made the subclass 457 visa application on 25 August 2016, he was the subject of an approved nomination for the position of Bricklayer made by an approved SBS, MZK Constructions Pty Ltd.  That nomination was approved on 7 November 2016.  The duration of nominations made in relation to subclass 457 visas is set out in r.2.75(2) (as it was prior to the 18 March 2018 amendments referred to in the Tribunal’s s.359A letter of 15 March 2019), which provides that approval of a nomination ceases at the earliest of the following:

    (a)  the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

    (b)  12 months after the day on which the nomination is approved; and

    (c)  the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

    (d)  if the approval of the nomination is given to a standard business sponsor — 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

    (e)  if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled; and

    (f)  if the approval of the nomination is given to a party to a work agreement (other than a Minister) — the day on which the work agreement ceases.

15. In this case, the Tribunal is satisfied that r.2.75(2)(b) applies, and therefore the applicant’s nomination by MZK Constructions Pty Ltd ceased 12 months after it was approved; that is, on 7 November 2017.

16. The primary applicant has not provided any evidence of being the subject of another approved nomination by that employer, or another approved SBS. As noted above, due to the legislative amendments which took place on 18 March 2018, he is unable to now obtain a new nomination that would satisfy the requirements of cl.457.223(4)(a).

17. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) are not met.

18. 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 primary applicant would be able to satisfy the specific criteria for those streams.  The Tribunal must affirm the decision to refuse to grant him a subclass 457 visa.

19. The Tribunal must also affirm the decisions to refuse the second, third, fourth, fifth and sixth named applicants subclass 457 visas, as there is no evidence that they meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 457 visa. There is no evidence that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    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.