Gautam (Migration)

[2018] AATA 4760

Gautam (Migration) [2018] AATA 4760 (6 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sudeep Gautam
Mrs Rita Baniya

CASE NUMBER:  1801669

DIBP REFERENCE(S):  BCC2016/2864537

MEMBER:R. Skaros

DATE:6 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 06 December 2018 at 2:07pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – approved nomination – nomination that has not ceased – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 140, 359, 360, 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 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 29 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 visas on 2 January 2018 on the basis that cl.457.223(4)(a) was not met because the first named (the applicant) was not the subject of a current approved nomination.  

5. The applicant provided a copy of the delegate’s decision record with the application for review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. The applicant applied for the visa on the basis of a nomination by Himalayan Chargrill Pty Ltd. The decision record indicates that the nomination made by Himalayan Chargrill Pty Ltd in relation to the applicant was refused by the Department on 1 December 2017. 

10. At the time of the application for review, the applicant provided evidence that a further nomination in relation to him was made by Himalayan Chargrill Pty Ltd on 22 January 2018. 

11. On 19 October 2018, the Tribunal sent to the applicants a general request for information about whether the applicant has an approved nomination for the purposes of the Subclass 457 visa. In the same letter, the Tribunal informed the applicants about the legislative changes in the Subclass 457 visa programme which came into effect on 18 March 2018. The applicants did not respond to that letter.

12. On 20 November 2018 the Tribunal wrote to the review 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. The information related to departmental records indicating that the most recent nomination in relation to the applicant, for the purposes of a 457 visa, by Himalayan Chargrill Pty Ltd had been refused by the Department on 30 January 2018. The Tribunal explained in the letter that the information is relevant to the requirements in cl.457.223(4)(a) which requires the applicant to be the subject of a current approved nomination under s.140GB of the Act.

13. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 4 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

14. The review applicants have not provided the comments 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.

15. In deciding whether to proceed to a decision on the information before it, the Tribunal notes that the applicant has been on notice of the issue in the review, namely whether he is the subject of a current approved nomination, since the delegate’s decision. A general letter was sent to the applicant on 19 October 2018 requesting him to provide evidence of an approved nomination for the purposes of a 457 visa, however, the applicant did not respond. The applicant has also not responded to the s.359A letter. The Tribunal is satisfied that the applicant has had sufficient opportunity to provide information about the issue in the review. The Tribunal has not received any response from the applicant and there is no information before the Tribunal which suggests that this case has any prospect of success. In the circumstances, the Tribunal has decided to proceed to a decision without taking further steps to obtain the comments.

16. For the applicant to succeed in this review, he is required to demonstrate that he is the subject of an approved nomination made under s.140GB of the Act for the purposes of a Subclass 457 visa. The evidence before the Tribunal indicates that the applicant is not the subject of such a nomination. Furthermore, given the legislative changes which came into effect on 18 March 2018, it appears that the applicant has no prospect of becoming the subject of an approved nomination that is capable of supporting his application for a Subclass 457 visa.

17. On the evidence before it, the Tribunal finds that there is no approved nomination of an occupation under s.140GB, for the purposes of a Subclass 457 visa, in respect of the applicant. For these reasons the requirements of cl.457.223(4)(a) are not met.

18. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not meet the requirement for the visa, the Tribunal must also affirm the decision in respect of the secondary applicant.

19. 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

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

    R. Skaros
    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.