HAINES (Migration)

[2018] AATA 4240

HAINES (Migration) [2018] AATA 4240 (12 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Colin Brian Haines
Ms Tracy-Jane Eatwell

CASE NUMBER:  1716941

DIBP REFERENCE(S):  BCC2016/4356020

MEMBER:Katie Malyon

DATE:12 September 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 12 September 2018 at 3:44 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – no approved nomination – Department refused nomination by the company – application for review withdrawn by company – secondary applicant does not meet the criteria – decision under review affirmed

PRACTICE AND PROCEDURE – no response to Tribunal’s invitation to comment – lost entitlement of a hearing

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2 cls 457.223, 457.321

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 by 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 visas on 23 December 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) of Schedule 2 to the Regulations 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 of the Regulations.

4. The delegate refused to grant the visas on 25 July 2017 on the basis that cl.457.223(4)(a) was not met because the primary applicant, Mr Colin Haines, was not the subject of an approved nomination by his prospective sponsor Australian Aged Dental Care Pty Ltd (the Company) due the fact that, on 8 June 2017, the Department had refused the nomination application lodged by the Company.  A copy of the delegate’s decision refusing the applicants’ Subclass 457 visa application was provided to the Tribunal.

5. By way of background, the Company separately sought review of the Department’s refusal of its nomination application in related matter 1713537.  However, the Company advised the Tribunal on 27 August 2018 that it had withdrawn its application for review in matter 1713537.

6. Accordingly, on 28 August 2018, the Tribunal wrote to the applicants pursuant to s.359A of the Act inviting them to comment on or respond to information which would, subject to their comments or response, be the reason, or a part of the reason, for affirming the decision under review to refuse their Subclass 457 visa application. The Tribunal informed the applicants that the Company had withdrawn its application for review of the delegate’s decision to refuse its nomination in respect of Mr Haines and, in circumstances, there is no approved nomination in relation to him. As a result, the position to which Mr Haines’ Subclass 457 visa application relates could not meet criteria in cl.457.223(4)(a) of Schedule 2 to the Regulations.

7. The Tribunal’s letter to the applicants was sent to them at the email provided in their review application.  The applicants were requested to provide any comments or response to the information in the Tribunal’s letter on or before 11 September 2018.  No response was received.

8. As the applicants have not provided any response to the Tribunal’s s.359A letter, the provisions of s.359C of the Act apply and, pursuant to s.360(3) of the Act, the 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

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) of Schedule 2 to the Regulations.

    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. On 27 August 2018, the Company informed the Tribunal that it withdrew its review application for the Department’s refusal of its nomination application in respect of Mr Haines. The Tribunal wrote to the applicants on 28 August 2018 with details of this information but they have failed to provide any response to, or comment on, the information. Because the nomination application for the position to which Mr Haines’ Subclass 457 visa application relates has not been approved, it follows that Mr Haines does not meet the criteria in the standard business sponsor steam in cl.457.223(4)(a) of Schedule 2 to the Regulations.

13. As Mr Haines does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second named applicant, his partner Ms Tracy-Jane Eatwell, does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.  There is no evidence before the Tribunal to indicate that Ms Eatwell meets the primary requirements for grant of the visa. 

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 by Mr Haines in respect of the other streams in cl.457.223 of Schedule 2 to the Regulations and there is no evidence that he would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Katie Malyon

    
    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.

    oOOo