Guder (Migration)

[2021] AATA 3341

Guder (Migration) [2021] AATA 3341 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hamiyet Guder
Mr Ali Guder
Dr Arif Guder
Mr Yigit Guder

CASE NUMBER:  2015164

HOME AFFAIRS REFERENCE(S):          BCC2014/3527006

MEMBER:John Cipolla

DATE:30 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2021 at 9:35am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – standard business sponsor stream – English language proficiency – now passed specified test – subject of approved nomination – nomination ceased – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 140GB, 359A, 359C, 360(3), 363

Migration Regulations 1994 (Cth), r 2.75(2)(b), Schedule 2, cl 457.223(4)(a), (eb)

CASES

Hasran v MIAC [2010] FCAFC 40

MIBP v Guder [2018] FCA 626

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 and Border Protection to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 22 December 2014.

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 (Cth) (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 10 April 2015 on the basis that cl 457.223(4)(eb) was not met because the first named applicant (hereinafter referred to as the applicant) did not meet the English language proficiency requirement.

5. The applicant sought merits review with the AAT pertaining to the adverse Departmental decision and the Tribunal (differently constituted) affirmed the decision finding that the applicant did not meet the English language proficiency requirements and consequently did not satisfy cl 457.223(4)(eb).

6. The applicant sought judicial review of the previously constituted Tribunals decision. The Federal Circuit Court, at first instance, concluded that the applicant was not afforded a meaningful hearing opportunity by the Tribunal in breach of s.360 of the Migration Act 1958. The Tribunal did not need to remind the applicant of the principal issue, being whether she met the English language criterion, however, it did need to ensure that she was aware of the secondary and consequential issue, namely whether she should be afforded more time within the prescribed period of three years in the instrument to attempt to meet the English language criterion.

7. The Minister appealed this decision. The Federal Court dismissed the Ministers appeal finding that there was no error in the FCC’s finding that the Tribunal breached s.360.

8. The evidence before the Tribunal indicates that the applicant has in the interim, now passed the requisite test to meet the English language proficiency requirements for the grant of the visa.

9. However, there are additional criteria that need to be satisfied by the applicant. As noted by Griffiths J in the above proceedings in the Federal Court (see Minister for Immigration and Border Protection v Guder [2018] FCA 626 at 41)

   Consistently with SZBEL, issues in relation to a decision under review may extend to any and every aspect of an applicant’s claim for a visa, but they need not.  Moreover, in conducting a Pt 5 review, the Tribunal is not confined to whatever may have been the issues considered by the delegate.  It is the Tribunal’s task to identify the issues that arise in relation to the decision under review, guided but not confined by the delegate’s reasons for decision and taking into account the express terms of the criteria for the grant of the relevant visa. 

10. To this end the Tribunal, after identifying issues in relation to the decision under review, namely the fact that the applicant was no longer the subject of an approved nomination by a standard business sponsor, wrote to the applicant on 2 August 2021 under s.359A of the Migration Act (with a response being due by 16 August 2021) in the following terms.

    In conducting the review, we are required by the Migration Act 1958 to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decisions under review.
    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa
    that Mrs Hamiyet Guder (the visa applicant) is the subject of a nomination by a
    standard business sponsor approved under s.140GB of the Act.

    A review of your file and Departmental records suggests that the visa applicant is
    not the subject of an approved nomination by a standard business sponsor
    because the nomination previously approved for The Trustee for Selleck Family
    Trust in respect of the visa applicant ceased to be in effect on 2 March 2016,
    being 12 months after the day on which the nomination was approved: by
    operation of r.2.75(2)(b).

    The Migration Amendment (Temporary Skill Shortage visa and Complementary
    Reforms) Regulations 2018 commenced 18 March 2018 and, among other things,
    repealed and replaced the criteria for nominations relating to proposed Subclass
    457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

    This information is relevant to the review because it suggests that the visa applicant is not the subject of an approved nomination and that a new application for approval cannot be made. If we rely on this information in making our decision, we may find that the visa applicant is not the subject of an approved nomination. This would be the reason, or a part of the reason, for affirming the decision under review.

11. On 9 August 2021 the applicant’s representative Mr Brenton Halligan wrote to the Tribunal to advise that he was no longer acting for the applicant and he provided the applicant’s current residential address and e-mail address for service.

12. On 11 August 2021 the Tribunal instructed a Registry Officer to send a copy of the s.359A letter to the applicant. The letter was dispatched to the applicants e-mail address provided by Mr Halligan. The covering e-mail noted as follows;

    On 02 August 2021 the Tribunal dispatched a '359A - Invitation to Comment on or Respond to Information' to your authorised representative Mr Halligan. On Monday 09 August 2021, we received a response from Mr Halligan indicating that he was no longer acting on your behalf. Please see attached both this response from Mr Halligan, and the 359A invitation in question, should you wish to comment.

    If you have any questions or are experiencing problems opening the document/s attached to this email message, please contact us immediately at [email protected], or call 1800 228 333.

13. Prior to the e-mail being dispatched checks were made of Tribunal records to ensure that the e-mail was forwarded to the correct e-mail address for the applicant.

14. The due date for a response to the s.359A letter was 16 August 2021. The applicant has failed to provide comments within the prescribed period and no extension has been granted.

15. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

18. 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.

19. As the applicant is not the subject of a relevant approved nomination capable of supporting her subclass 457 visa application, it follows that the applicant does not meet the requirements in cl.457.223(4)(a).

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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    John Cipolla
    Senior 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.