Haddad (Migration)

[2019] AATA 5140

Haddad (Migration) [2019] AATA 5140 (11 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr FAROUK HADDAD

CASE NUMBER:  1700398

DIBP REFERENCE(S):  BCC2016/1321044

MEMBER:Michael Ison

DATE:11 November 2019

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 11 November 2019 at 5:55pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A invitation – not entitled to appear before the Tribunal subject of an approved nomination – nomination refused – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 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 visa applicant applied for the visa on 31 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 22 December 2016 on the basis that cl.457.223(4)(a)(i) was not met because the applicant’s prospective employer did not have an approved nomination for the applicant’s position at the time of the delegate’s decision. The delegate found the applicant’s proposed employer, FWT Pty Ltd, had its nomination refused on 22 December 2016.

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

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. On 22 October 2019 the Tribunal wrote to the applicant 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 decision under review.

   Please note, however, that we have not made up our mind about the information.

   The particulars of the information are:

   ·Your visa application was refused by a delegate of the Minister on 22 December 2016 because the nomination mentioned in cl.457.223 (4) had not been approved and you provided no information under cl.457.223 (2).

   ·The decision not to approve the nomination by FWT Pty Ltd ATF Fawkner Wheels & Tyres Trust was made on 22 December 2016.

   ·FWT Pty Ltd ATF Fawkner Wheels & Tyres Trust applied for review of this decision at this Tribunal on 9 January 2017.

   ·On 15 October 2019 the representative for the nominator, FWT Pty Ltd ATF Fawkner Wheels & Tyres Trust, advised the Tribunal that FWT Pty Ltd ATF Fawkner Wheels & Tyres Trust withdrew the application for review to refuse to approve a nomination application for a Temporary Work (Skilled) (Subclass 457) visa.

   ·On 16 October 2019 the Tribunal has accepted the withdrawal from the nominator. Accordingly, the Tribunal no longer has jurisdiction to review the delegate’s decision to refuse to approve a nomination application for a Temporary Work (Skilled) (Subclass 457) visa.

   This information is relevant to your review because one of the criteria for the grant of a subclass 457 visa, namely clause 457.223(4), requires that the nomination has been approved by the Minister and that nomination has not ceased.

   The consequence of the Tribunal relying on this information in making its decision is that the Tribunal may find that the position specified in your visa application is not the subject of an approved nomination. This would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review. This is because as the nominator’s application for the nominated position has not been approved, subject to your response, you do not satisfy a requirement for the grant of a subclass 457 visa and the Tribunal therefore must affirm the decision that is under review.

   You are invited to give comments on or respond to the above information in writing. [1]

   [1] Tribunal file, folios 13 to 16 at folio 15.

10. The Tribunal’s letter invited the applicant to comment on or respond to the information by 6 November 2019 in accordance with the requirements set out in s.359B of the Act and the prescribed period for responses established by r.4.17.

11. The applicant has not responded to the Tribunal’s letter and no extension to the prescribed period to respond has been sought. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

12. 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 determinative issue in the review, namely whether the applicant is the subject of a current approved nomination, since the delegate’s decision on 22 December 2016. The determinative issue was also particularised in the Tribunal’s letter sent in accordance with s.359A, to which the applicant did not respond. The Tribunal is satisfied that the applicant has had sufficient opportunity to provide information about the determinative issue in the review, including being represented and advised by a registered migration agent who is also a lawyer throughout this review.

13. The Tribunal also notes that on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 were introduced. Among other things, these regulations repealed and replaced r.2.72 of the Regulations, which set out the criteria for nominations relating to Subclass 457 visa applications, and also repealed the Subclass 457 visa and replaced it with the Subclass 482 (Temporary Skills Shortage) visa. This means new nominations lodged from 18 March 2018 are for Subclass 482 visas or for existing Subclass 457 visa holders and do not support an outstanding application for a Subclass 457 visa. The Tribunal has formed the view that on the information before it the applicant’s case does not have any reasonable prospect of being successful.

14. 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.

15. 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.

    Conclusion

16. For these reasons the requirements of cl.457.223(4)(a) are not 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

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

    Michael Ison
    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.