Kaur (Migration)

[2021] AATA 660

Kaur (Migration) [2021] AATA 660 (10 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Ramandeep Kaur
Mr Baljinder Singh
Miss Sukhman Kaur Kaur
Mr Japjot Singh

CASE NUMBER:  1812413

HOME AFFAIRS REFERENCE(S):          BCC2017/1310162

MEMBER:Antonio Dronjic

DATE:10 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 10 March 2021 at 12:19pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application affirmed – no substantive response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321

CASES
Giri v MIAC [2011] FMCA 282
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kalakuntla v MHA [2019] FCCA 3663
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 7 April 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 (Cth) (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 visas on 12 April 2018 on the basis that cl 457.223(4)(a) was not met by the primary applicant. On 15 February 2018, the Department refused the nomination application lodged by H Sohi & M Kaur, nominating the first named applicant for a position of a gardener within the business. The secondary applicants were refused as they were not able to meet cl. 457.321.

5. The applicants applied to the Tribunal on 1 May 2018 and provided a copy of the primary decision record with the applications. The applicants were represented by a migration agent.

6. On 17 February 2021, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 24 March 2021.

7. On 19 February 2021, the Tribunal wrote to the applicants inviting comments on or response to the information under section 359A. The s.359A letter sought the applicants comment on or response to the following information:

   ·The first named review applicant was nominated by H Sohi & M Kaur for a position of a Gardener.

   ·The nomination application made by H Sohi & M Kaur was refused by the Department on 15 February 2018.

   ·H Sohi & M Kaur applied for review of this decision at the Tribunal on 6 March 2018.

   ·On 7 October 2020, the Tribunal affirmed the primary decision not to approve the nomination application lodged by H Sohi & M Kaur.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the first named applicant does not meet the criteria contained within clause 457.223(4)(a).

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the second, third and fourth named review applicants the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.321 requires the secondary applicants to be members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

   Accordingly, if the first named review applicant is not a holder of a subclass 457 visa, the secondary applicants will not be able to meet cl.457.321.

   You are invited to give comments on or respond to the above information in writing…

8. The invitation was sent to the applicants’ representatives’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 5 March 2021, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 19 February 2021.

9. On 22 February 2021, the applicant’s representative wrote to the Tribunal informing it that the applicants do not wish to attend the scheduled hearing. The review applicants have not provided comments on or response to the information contained in the Tribunal letter of 19 February 2021. The Tribunal does not regard the applicant’s e-mail of 22 February 2021 to be a response to s.359A letter as the email did not address the information put to the applicant under s 359A or make any reference to the invitation. (Kalakuntla v MHA[1])

   [1] Kalakuntla v MHA [2019] FCCA 3663 at [17]–[20]..

10. In this matter, as the Tribunal has already issued a hearing invitation and the applicants have subsequently failed to respond to a s 359A invitation within the prescribed period, s 360(3) operate with the effect that the applicants will no longer be entitled to attend the scheduled hearing.[2] As s 360(3) removes any entitlement to attend a hearing, s 363A has the effect of preventing the Tribunal from permitting the applicant to attend a hearing. 

    [2] Giri v MIAC [2011] FMCA 282 at [21], [29]. Upheld on appeal: Giri v MIAC [2011] 928.

11. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicants additional time in which to provide comments on or response to the information contained in the Tribunal letter of 19 February 2021.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[3] and Manna v Minister for Immigration and Citizenship[4] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[5] regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[6] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[7] where analogous issues were discussed.

    [3] [2002] FCA 617

    [4] [2012] FMCA 28

    [5] [2013] HCA 18 (8 May 2013)

    [6] [2014] FCAFC 1 (4 February 2014)

    [7] [2014] FCA 915 (28 August 2014)

13. The Tribunal considered whether, in the circumstances of this case, the applicants’ comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicants had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicants.

14. In this case the Tribunal wrote to the applicants under subsection 359A of the Act inviting them to provide comments and/or or response to the Tribunal letter of 19 February 2021. The Tribunal notes that the applicants have had the benefit of representation from a registered migration agent to assist with their review application. Yet, neither the applicants nor their representative provided comments and/or or response within the prescribed periods set for this purpose.

15. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 12 April 2018, because the first named applicant was unable to meet the cl.457.223 (4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.  The applicants submitted a copy of the primary decision record with the review application. The applicants were aware of the reasons for the delegate’s’ decision for more than 58 months.

16. The Tribunal note that, if the applicants are not granted a temporary work visa, they may be required to depart Australia. There is nothing to prevent the applicants from re-applying for a temporary visa once the first named applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.

17. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide their comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

19. 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.

20. Based on the evidence before it, the Tribunal finds that the first named applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased.  The Tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a).

21. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second, third and fourth named applicants do 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.

22. 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

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

    Antonio Dronjic
    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.