JHIM (Migration)

[2019] AATA 1820

JHIM (Migration) [2019] AATA 1820 (3 June 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Johari Kumar Jhim

CASE NUMBER:  1617627

DIBP REFERENCE(S):  BCC2016/2254178

MEMBER:Alison Mercer

DATE:3 June 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 03 June 2019 at 11:31am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no response to s 359A letter – not entitled to appear before the Tribunal – Schedule 3 criteria – application lodged outside of relevant timeframe – subject of an approved nomination – nomination ceased 12 months after it was approved – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cls 457.211, 457.223

CASES
Yang v MIAC [2010] FMCA 890

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 4 July 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 11 October 2016 on the basis that cl.457.211 was not met.  This clause required that the applicant met the relevant Schedule 3 criteria as he had applied for the subclass 457 visa more than 28 days after he had ceased to hold a substantive visa. The delegate found that the applicant’s last substantive visa expired on 15 March 2016 but that he did not apply for the subclass 457 visa until 4 July 2016.  The delegate acknowledged the applicant’s explanation that he had applied for a new student visa before 15 March 2016 but withdrew this application and made the subclass 457 visa application after he received a job offer from an approved standard business sponsor (SBS). However, the delegate did not consider that the applicant ceased to hold a substantive visa for reasons beyond his control, and was also not satisfied that there were compelling or compassionate circumstances in the applicant’s case.

5. The Tribunal received a review application from the applicant on 24 October 2016, which was accompanied by a copy of the delegate’s decision.

6. On 15 March 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, to invite him to comment on information that was potentially adverse to his case. The Tribunal advised him that the Department’s records indicated that he was no longer the subject of an approved employer nomination, as the nomination of him made by Radford’s Place Pty Ltd had expired on 23 September 2017. The Tribunal further advised that the Migration Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 commenced on 18 March 2018, and that, among other things, they repealed and replaced the criteria for nominations relating to proposed subclass 457 visas applicants, as well as repealing the subclass 457 visa category, which was closed to new applications.

7. The Tribunal advised the applicant that this information was relevant to the review because it suggested that the applicant was not the subject of an approved nomination and that a new nomination for approval could not be made. It further stated that if it relied on this information, it might find that he was not the subject of an approved nomination, and this would be the reason (or part of the reason) for affirming the decision under review. The applicant was invited to respond to, or comment on, this information by 29 March 2019. He was advised that he could seek an extension of time to do so, but should request this before 29 March 2019 and provide reasons. He was further advised that if he failed to comment or respond by the due date, he would lose any entitlement he had to a Tribunal hearing, and the Tribunal might proceed to make its decision on the available evidence without taking any further steps to obtain his response or comments.

8. The Tribunal is satisfied that the above letter was sent via email to the email address nominated by the applicant.  There is no evidence that it was not received or could not be sent.

9. The Tribunal did not receive a response or request for an extension of time to respond from the applicant by 29 March 2019. It has had no further communication from him since that time.

10. The applicant has not responded to the Tribunal’s s.359A letter. In the circumstances, s.359C applies and pursuant to s.360(3), the applicant is not entitled to appear before the Tribunal. The Tribunal has no power to permit him to appear: see Yang v MIAC [2010] FMCA 890. In the circumstances set out above – where there no evidence that the applicant has the required approved nomination and he did not respond to the s.359A letter - the Tribunal has decided to proceed to a decision without taking further steps to obtain the applicant’s comments on or response to the information set out in the Tribunal’s letter of 15 March 2019.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The initial issue in the present case was whether the applicant met the Schedule 3 criteria applicable to him, as required by cl.457.211. However, developments since the time the applicant made his visa application have meant that another legal criterion has become significant and determinative in his case.

    Requirement for an approved nomination

13. 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.

14. The Department’s records indicate that at the time that the applicant made his subclass 457 visa application on 4 July 2016, he was the subject of an approved nomination for the position of Cook made by an approved SBS, Radford’s Place Pty Ltd.  That nomination was approved on 23 September 2016.  The duration of nominations made in relation to subclass 457 visas is set out in r.2.75(2) (as it was prior to the 18 March 2018 amendments referred to in the Tribunal’s s.359A letter of 15 March 2019), which provides that approval of a nomination ceases at the earliest of the following:

    (a)  the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

    (b)  12 months after the day on which the nomination is approved; and

    (c)  the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

    (d)  if the approval of the nomination is given to a standard business sponsor — 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

    (e)  if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act — the day on which the person’s approval as a standard business sponsor is cancelled; and

    (f)  if the approval of the nomination is given to a party to a work agreement (other than a Minister) — the day on which the work agreement ceases.

15. In this case, the Tribunal is satisfied that r.2.75(2)(b) applies, and therefore the applicant’s nomination by Radford’s Place Pty Ltd ceased 12 months after it was approved; that is, on 23 September 2017.

16. The applicant has not provided any evidence of being the subject of another approved nomination by that employer, or another approved SBS. As noted above, due to the legislative amendments which took place on 18 March 2018, he is unable to now obtain a new nomination that would satisfy the requirements of cl.457.223(4)(a).

17. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) are not met.

18. 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

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

    Alison Mercer
    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.