KAUR (Migration)

[2019] AATA 591

KAUR (Migration) [2019] AATA 591 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Narinder Kaur
Mr Surinder Pal
Master Harsh Na
Master Divjot Na

CASE NUMBER:  1606927

DIBP REFERENCE(S):  BCC2016/224861

MEMBER:Katie Malyon

DATE:18 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2019 at 3:21 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination expired – 457 visa program repealed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cl 457.223

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 made 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 applicants applied for the visa on 15 January 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 of the Regulations 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 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) of the Regulations 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 stream in cl.457.223 of the Regulations, the labour agreement stream in cl.457.223(2) of the Regulations.

4. The delegate refused to grant the visas on 3 May 2016 on the basis that the first named applicant, Mrs Narinder Kaur, did not satisfy criteria for grant of the visa because she failed to meet Public Interest Criterion 4014.  The remaining applicants’ visas were refused because they are not family members of the person who satisfies the primary criteria and holds a Subclass 457 visa.  A copy of the delegate’s decision was provided to the Tribunal. 

   Background

5. Mrs Kaur is a national of India.  She was successfully nominated by approved standard business sponsor, Sargun Group Pty Ltd (the Company), to work with the Company as a Web Administrator ANZSCO 313113. Departmental records indicate that the nomination lodged by the Company in relation to Mrs Kaur was approved on 1 December 2015 and, so, it ceased on 1 December 2016 consistent with r.2.75(2)(b) of the Regulations. Then, on 29 August 2017, a new nomination application made by the Company in respect of Mrs Kaur was refused by the Department. The Company did not seek review of the delegate’s refusal of its second nomination application.

6. On 1 February 2019, the Tribunal wrote to the applicants pursuant to s.359A of the Act. In its letter, the Tribunal observed that the Migration Legislation Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations). The Amending Regulations repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and also repealed the Subclass 457 visa. Having reviewed her file, the Tribunal observed that it appeared Mrs Kaur is not currently the subject of an approved nomination by a standard business sponsor as required by cl.457.223(4)(a) of Schedule 2 to the Regulations, and that a new application for approval of a nomination in support of her Subclass 457 visa can no longer be made.

7. The Tribunal’s letter to the applicants was sent to their representative at the email address provided in the review application. The Tribunal has independently confirmed that the representative is still a registered migration agent and that the email address (used by the Tribunal in its letter of 1 February 2019) was correctly identified on the review application lodged with the Tribunal. The applicants were requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 15 February 2019. No response has been 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 must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The delegate refused the primary visa applicant’s Subclass 457 visa on the basis that she did not meet PIC 4014 and, therefore, cl.457.224 of Schedule 2 to the Regulations. However, given the passage of time since lodgement of the review application, the issue now 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. As noted above, having reviewed Departmental records, on 1 February 2019 the Tribunal wrote to the applicants with details of information that is adverse to their application. The Tribunal observed that the approved nomination made by the Company expired on 1 December 2016 consistent with r.2.75(2)(b) of the Regulations and that a subsequent nomination made by the Company had been refused. Further, the Tribunal noted that following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made and, it follows that Mrs Kaur does not meet criteria in the standard business sponsor steam in cl.457.223(4)(a) of Schedule 2 to the Regulations.

13. Since Mrs Kaur does not satisfy the primary criteria for grant of a Subclass 457 visa, the remaining applicants - her partner Mr Surinder Pal and Mrs Kaur’s 2 young sons - do not satisfy the secondary criteria for 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 has satisfied the primary criteria for grant of their Subclass 457 visa.  There is no evidence before the Tribunal to indicate that Mr Pal meets the primary criteria for grant of the visa. 

14. The applicants did not respond to the Tribunal’s invitation to comment.

15. Based on the evidence before it and for the reasons given above, the Tribunal finds that the requirements for the standard business sponsor stream in cl.457.223(4) of Schedule 2 to the Regulations have not been met by Mrs Kaur and, accordingly her family members cannot meet requirements in c.457.321 of Schedule 2 to the Regulations. No claims have been made by Mrs Kaur or Mr Pal in respect of the other stream in cl.457.223(2) of Schedule 2 to the Regulations, the labour agreement stream, and there is no evidence that either of them would be able to satisfy the specific criteria for those streams. Accordingly, the Tribunal must affirm the decision under review.

    DECISION

16. 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