Kangotra (Migration)

[2017] AATA 2858

Kangotra (Migration) [2017] AATA 2858 (19 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ronika Kangotra
Mr Amit Kangotra
Mr Ranveer Kangotra
Mr Arsh Kangotra

CASE NUMBER:  1611516

DIBP REFERENCE(S):  BCC2016/453730

MEMBER:Wan Shum

DATE:19 December 2017

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction in respect of the third and fourth named applicants.

Statement made on 19 December 2017 at 3:54pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 visa – No approved nomination – Not within Australia

LEGISLATION
Migration Act 1958, ss 65, 362B, 379A
Migration Regulations 1994, 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 applicants Temporary Business Entry (Class UC) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 January 2016.

3. 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). 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 21 July 2016 on the basis that cl.457.223(4)(a) was not met because the first named applicant was not the subject of an approved nomination.

5. The applicants have sought review of that decision and were represented in relation to the review by a registered migration agent, Mr Bimal Bhattarai of NAOSAMS Migration Services. The Tribunal does not have jurisdiction in relation to the third and fourth named applicants as they were not in Australia when the application for review was made (refer s.347(2)(a) and (3)).

6. On 3 October 2017, the Tribunal wrote to the applicants advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The notice was sent to the email address of their representative. The Tribunal invited the applicants to give evidence and present arguments at a hearing on 22 November 2017. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders to the mobile number provided about the hearing 5 business days and one business day before the scheduled hearing.

7. No response to the hearing invitation was received and the applicants did not appear before the Tribunal on the day and at the scheduled time and place. The Tribunal subsequently became aware that the registration of the migration agent, who had been appointed as their representative, had lapsed on 27 September 2017. The Tribunal wrote to the representative and the applicants on 28 November 2017 regarding the registration lapsing. No response was received and, in these circumstances, the applicant was contacted by phone directly regarding whether she had been informed of the hearing. She said that she had but thought her migration agent would attend. The applicant confirmed to the tribunal officer that she did not want to change her migration agent and the Tribunal has received a completed appointment of representative and authorised recipient form for a migration agent from the same organisation, NAOSAMS Migration Services, which appears to be signed by the applicant and dated 8 December 2017. This form was emailed to the Tribunal on 11 December 2017 from the email address provided on the review application form for the previous migration agent. Nothing further has been received.

8. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicants were properly invited to a hearing in accordance with s.379A(5). In these circumstances, and 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.

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).

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. There is no evidence before the Tribunal that a nomination of an occupation relating to the first named applicant has been approved. The first named applicant has not provided evidence that she meets the requirements of cl.457.223(4)(a)(i).

12. For these reasons, the first named applicant does not meet the requirements of cl.457.223(4)(a).

13. Given this, 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

14. The Tribunal affirms the decision not to grant the first and second named applicants Temporary Business Entry (Class UC) visas.

15. The Tribunal does not have jurisdiction in respect of the third and fourth named applicants.

    Wan Shum
    Member