Jagdev (Migration)

[2019] AATA 1893

Jagdev (Migration) [2019] AATA 1893 (2 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sukhvinder Singh Jagdev

CASE NUMBER:  1802486

DIBP REFERENCE(S):  BCC2017/949485

MEMBER:Karen Synon

DATE:2 April 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 02 April 2019 at 10:06am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – Tribunal attempted to contact applicant – no response – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B
Migration Regulations (Cth) 1994, r 2.62, Schedule 2, cl 457.223

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 10 March 2017.

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 16 January 2018 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. The applicant applied for review of the primary decision on 31 January 2018 and provided a copy of the department’s decision.

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

7. On 6 December 2018 the Tribunal wrote to the applicant via his authorised representative and registered migration agent relevantly advising:

   On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r.2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa.

   It is a requirement for the grant of the visa that you are the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of your file suggests that you are not the subject of an approved nomination by a standard business sponsor, and that a new application for approval of a nomination in support of your Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

   Without an approved nomination, you will not meet an essential criterion for the grant of the visa.  This would mean that the decision under review must be affirmed.

   If you are now the subject of an approved nomination for a Subclass 457 (Temporary Work (Skilled)) visa, please provide us with evidence about this.  Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please complete and return [the enclosed withdrawal form].

8. No response was received and the application for review was not withdrawn.  Further, no substantive submissions have been received since the time the application for review was lodged over 14 months ago.

9. On 8 March 2019 the Tribunal wrote to the applicant, via his authorised recipient and registered migration agent, inviting him to a hearing to present evidence and arguments in relation to his case on 1 April 2019.  The invitation relevantly stated:

   Last year we wrote to you advising that the 457 visa program had closed and that you did not appear to be the subject of an approved nomination.  You were invited to either provide evidence that you the subject of an approved 457 nomination or withdraw your application.  A nomination for any other visa class, including a 482 nomination, cannot be used to satisfy the criteria for the 457 visa you have under review.  As you did not respond to the Tribunal’s letter, you are now invited to a hearing.  

10. The applicant was further relevantly advised:

    If you do not attend the scheduled hearing, we may make a decision without taking any further action to allow or enable you to attend before us.

11. No response was received to the hearing invitation and the applicant did not appear before the Tribunal on the day and at the time and place at which he was scheduled to appear.

12. Section 362B(2) provides the Tribunal with a discretion to reschedule the applicant’s appearance before it or to delay its decision on the review in order to enable his appearance to be rescheduled.  The Tribunal has therefore considered whether it would be appropriate in the circumstances of this case to exercise this discretion in the applicant’s favour.

13. The Tribunal notes the visa was refused on 16 January 2018 and the review application was lodged on 31 January 2018.  The applicant has not provided any substantive submissions to the Tribunal since the application for review was lodged, did not respond to the letter sent on 6 December 2018 and nor was any response received to the Tribunal’s hearing invitation.

14. Further, the Tribunal’s records confirm that text messages reminding the applicant of the hearing were sent to the applicant’s advised mobile telephone number at 11am on 25 March 2019 and again at 11am on 29 March 2019.

15. The Tribunal also notes that the applicant has been represented throughout the review by registered migration agents and therefore has had the benefit of migration advice.

16. Finally, the Tribunal has waited 24 hours after the scheduled hearing to see if any explanation or medical evidence was provided for why the applicant did not appear before the Tribunal as scheduled.  None has been provided.

17. In these circumstances, and for the reasons set out below, the Tribunal has determined not to exercise its discretion under s.362B(2) to enable the applicant’s appearance to be re-scheduled.  Therefore, pursuant to s.362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. 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

20. 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.

21. The primary decision records that on 11 January 2017 a decision was taken by the department to refuse the nomination lodged in respect of the applicant by Exotic Pizza Pty Ltd and that a further nomination lodged 2 March 2017 was refused on 15 December 2017.

22. No information has been provided to the Tribunal that the applicant has subsequently been the subject of any approved Subclass 457 nomination.

23. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

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

25. 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

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

    Karen Synon
    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.