LE (Migration)

[2022] AATA 180

LE (Migration) [2022] AATA 180 (25 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Lien LE
Mr Nguyen Ba Dat TRAN

REPRESENTATIVE:  Mr ROBERT LIU (MARN: 0425543)

CASE NUMBER:  1815335

HOME AFFAIRS REFERENCE(S):          BCC2018/987371

MEMBER:Amanda Mendes Da Costa

DATE:25 January 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 25 January 2022 at 1.18pm

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

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360, 363, 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

CASES

Hasran v MIAC [2010] FCAFC 40

Huo v MIMA [2002] FCA 617

Kaur v MIBP [2014] FCA 915

Manna v MIAC [2014] FMCA 28

MIAC v Li [2013] HCA 18

MIBP v Singh [2014] FCAFC 1

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 1 March 2018.

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 7 May 2018 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 were represented in relation to the review.

6. On 27 October 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information which it considered would, subject to their comments or response, be the reason or part of the reason, for affirming the decision under review.

7. The particulars of that information are:

   ·Elnart Pty Ltd applied to the Tribunal for review of a Departmental decision not to approve a nomination in respect of the first named applicant for the occupation of ‘Café or Restaurant Manager’.  On 20 October 2020 the Tribunal affirmed the decision of the Department to refuse the nomination made by Elnart Pty Ltd in respect of the first named applicant.

   ·Tribunal and Departmental records indicate that the first named applicant is not presently the subject of an approved nomination by a standard business sponsor.

8. The Tribunal explained to the applicants that this information is relevant to the Tribunal’s review because cl 457.223(4)(a) requires that at the time of decision the applicant is the subject of an approved nomination by a standard business sponsor.

9. The Tribunal advised the applicants that 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 to grant the applicant a subclass 457 visa because the first named applicant did not meet the requirements of cl 457.223(4)(a).

10. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 10 November 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement it might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The applicants have not provided the information within the prescribed period (or at all) and no extension has either been sought or granted.  In these circumstances, s 359C applies and pursuant to s 360(3) the applicants are not entitled to appear before the Tribunal.  The effect off s 363A of the Act is that if an 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 information.

12. The applicants have not requested additional time to provide evidence and present arguments, relating to the review application.

13. 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 its application for review.

14. 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 [2014] 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.

15. The Tribunal has taken into account that the applicants have not provided the information invited to be provided, within the prescribed period set for this purpose.

16. The Tribunal has also taken into account the fact that the applicants have been aware since the delegate’s decision on 7 May 2018 of the reasons for the nomination application being refused.  The Tribunal also notes that the implications of not providing the information requested in the invitation from the Tribunal were set out in the letter of 27 October 2020.

17. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to provide information addressing the central issues arising in the application for review, or in which to request an extension of time in order to provide that information but the Tribunal has decided not to exercise its discretion under s 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the relevant criteria under cl 457.223(4)(a).     

18. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

    CONSIDERATION OF CLAIMS AND EVIDENCE

19. The issue in the present case is whether the first named applicant meets the requirements of cl 457.223(4)(a).

    Requirement for an approved nomination

20. 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.

21. Based on the evidence before it, the Tribunal finds that:

    ·     Elnart Pty Ltd applied to the Tribunal for review of a Departmental decision not to approve a nomination in respect of the first named applicant for the occupation of ‘Café or Restaurant Manager’.  On 20 October 2020 the Tribunal affirmed the decision of the Department to refuse the nomination made by Elnart Pty Ltd in respect of the first named applicant.

    ·     Tribunal and Departmental records indicate that the first named applicant is not presently the subject of an approved nomination by a standard business sponsor.

22. For these reasons the requirements of cl 457.223(4)(a) are not met.

23. 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 first named applicant would be able to satisfy the specific criteria for those streams.

24. Given its findings regarding the first named applicant, the Tribunal does not consider that the visa application of the second named applicant should be reconsidered as he is not a member of the family unit of a person who has met the primary criteria for the grant of a Temporary Business Entry (Class UC) visa.

    DECISION

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

    Amanda Mendes Da Costa
    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.