Kovacova (Migration)

[2018] AATA 1410

Kovacova (Migration) [2018] AATA 1410 (26 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Nikola Kovacova

CASE NUMBER:  1710469

DIBP REFERENCE(S):  BCC2016/3122766

MEMBER:Wan Shum

DATE:26 April 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 April 2018 at 4:28pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled )) – ‘standard business sponsorship’ scheme – Sponsor’s nomination not approved – Applicant did not respond to Tribunal’s request for further information

LEGISLATION
Migration Act 1958 ss 65, 359A, 360, 363A

Migration Regulations 1994 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 of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 457 visa on 20 September 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. In the present case, specific claims have been made against the ‘standard business sponsorship’ scheme which applies to sponsorship for employment in an occupation by a standard business sponsor. In this case, the visa application was linked to a nomination application made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd. No claims have been made in respect of the other alternative streams in cl.457.223.

4. The nomination made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd was not approved.

5. The delegate refused to grant the visa on 27 April 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

6. The applicant has sought review of that decision. The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd also sought review of the decision not to approve the nomination. On 22 March 2018, the Tribunal affirmed the decision not to approve the nomination made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd in relation to her.

7. On 5 April 2018, the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information was that the Tribunal had affirmed the decision not to approve the nomination made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd in relation to her. The relevance of this information was that it did not appear that she met the requirements of being the subject of an approved nomination as required by cl.457.223(4)(a).

8. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 19 April 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is 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 him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the primary visa applicant meets the requirements of 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.

12. A nomination was made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd for a Corporate Services Manager, and the visa applicant lodged the visa application the subject of this review on that basis.

13. The department refused the nomination. On 22 March 2018, the Tribunal affirmed the decision not to approve the nomination made by The White Red Blue Catering Trust ATF Red White Blue Catering Group Pty Ltd in relation to her.

14. For these reasons the requirements of cl.457.223(4)(a) are not met in respect of this visa application.

15. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Wan Shum
    Member