Kumar (Migration)

[2021] AATA 1063

Kumar (Migration) [2021] AATA 1063 (23 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sandeep Kumar
Mrs Savita CHOUDHARY
Master Aadish Jaglan

CASE NUMBER:  1812006

HOME AFFAIRS REFERENCE(S):          BCC2016/4352823

MEMBER:Susan Trotter

DATE:23 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 23 March 2021 at 7:44am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457–no approved sponsor –applicant was not a subject of an approved nomination –failed to provide requested response within the prescribed period– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360,363
Migration Regulations 1994, Schedule 2, cl 457.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Kaur v Minister for Immigration and Border Protection [2014] FCA 915

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 23 December 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 (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.

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.

5. The delegate refused to grant the visas on the basis that the first-named applicant (the applicant) did not meet cl.457.223(4)(a) of Schedule 2 to the Regulations as she was not the subject of an approved nomination as required. As regards the second-named applicants, they were consequently not each a member of the family unit of a person who, having satisfied the primary criteria was a holder of a Subclass 457 visa, as required.

6. The applicants lodged an application with the Tribunal on 27 April 2018 seeking review of the delegate’s decision. The applicants provided a copy of the delegate’s decision to the Tribunal.

7. On 5 March 2021, the Tribunal invited the applicants to comment on or respond to certain information before it, in particular information suggesting that the applicant is not, as required for the grant of the visa, the subject of an approved nomination by a standard business sponsor that has not ceased. It was also noted that consequently this would mean that the second-named applicants would not each meet a necessary secondary criterion.

8. The invitation was sent to the applicants at the address last provided in connection with the review.

9. The Tribunal did not receive any response to its letter of 5 March 2021 within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicants failed to provide written comments or a response within the prescribed time, s.359C(2) of the Act applies and the Tribunal may make a decision on the review without taking any further action to obtain the applicants’ comments or response.

10. Further, as s.359C(2) of the Act applies to the applicants, they lose any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: s.360(3) of the Act. In this regard, the Tribunal observes that a hearing of the matter had been scheduled for 25 March 2021 but as the applicants have lost any entitlement to appear before the Tribunal, the hearing has been cancelled.

11. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support the application for review.

12. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, 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 [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

13. The applicants did not provide any response to or comment on the Tribunal invitation within the prescribed period set for this purpose.

14. Notably, the implications of not responding to the invitation letter the Tribunal sent on 5 March 2021 were set out in the Tribunal’s letter.

15. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address the issue as set out in the 5 March 2021 invitation. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review to allow the applicants more time and the Tribunal has proceeded to make a decision on the review without taking any further action to obtain the applicants’ views on the information.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case 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

18. 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.

19. On 12 October 2020, in case file 1808408, the Tribunal affirmed a decision by a delegate of the Minister for Immigration not to approve the nomination of the applicant for the occupation of Cafe or Restaurant Manager by D Company Pty Ltd.

20. As already indicated, on 5 March 2021, the applicants were sent a letter inviting them to comment on or respond to information that the applicant was not the subject of an approved nomination as required.

21. No response has been received to that invitation.

22. At the time of this decision, there is therefore no evidence before the Tribunal of an approved nomination of an occupation under s.140GB relating to the applicant.

23. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

24. It is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.

25. In these circumstances, the requirements of cl.457.223(4)(a) are not met and cannot now be met.

    Conclusion

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

27. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.

    Secondary applicants

28. The Tribunal must also affirm the decision not to grant the second-named applicants a Subclass 457 visa as they are each not a member of the family unit of a person who holds a Subclass 457 visa as required by cl.457.321, and there is no evidence that they meet the primary visa criteria for this Subclass in their own right.

    DECISION

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

    Susan Trotter
    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.