LEANNE MAREE MIRKIN (Migration)

[2019] AATA 2292

LEANNE MAREE MIRKIN (Migration) [2019] AATA 2292 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Ms Leanne Maree Mirkin

VISA APPLICANTS:  Mrs Harpreet Kaur
Mr Jugseer Singh
Miss Jasleen Kaur Bassi

CASE NUMBER:  1812995

DIBP REFERENCE(S):  BCC2018/1017313

MEMBER:K. Chapman

DATE:11 March 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 11 March 2019 at 10:41am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination of an occupation – member of the family unit – nomination refused – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’). The visa applicants applied for the visas on 3 March 2018. The review applicant is the nominator for the first named visa applicant (‘the nominee’). The visa applicants are offshore.

2. At the time the visa applications were 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 which requires the first named 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.

3. The delegate refused to grant the visas on 27 April 2018 on the basis that cl.457.223(4)(a) was not met because the first named visa applicant was not the subject of an approved nomination as required. On 5 May 2018, the review applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

4. On 21 February 2019, the Tribunal wrote to the review applicant pursuant to s.359A of the Act inviting her to provide comments on or response to the following information:

   a.“The application for approval of the nominated position made by Leanne Maree Mirkin (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but withdrew her application for review in AAT matter 1810537. This means that the nominator’s application for the nominated position has not been approved. For completeness, the Tribunal notes that it also affirmed a prior application for nomination by Leanne Maree Mirkin with respect to the same nominee in AAT matter 1728820.”

5. The Tribunal is satisfied that this invitation was properly despatched to the review applicant through her appointed registered migration agent. The review applicant failed to respond to the information within the prescribed time for responding. No response to that invitation has ever been received by the Tribunal.

6. Where a review applicant is invited to provide further information in accordance with subsection 359(2) of the Act, and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information according to subsection 359C(1) of the Act. In these circumstances, the review applicant is not entitled to appear before the Tribunal in accordance with subsection 360(3) of the Act. Of note, the effect of section 363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit the review applicant to appear before it as outlined in the Full Federal Court authority in the matter of Hasran v MIAC [2010] FCAFC 40.

7. Although the review applicant has 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 her additional time in which to provide evidence to support her application for review. The Tribunal has taken into account that the review applicant has been aware since 27 April 2018 of the visa refusal decision and also that the implications of not providing the information requested in the invitation from the Tribunal of 21 February 2019 were set out in that correspondence.

8. In these circumstances, the Tribunal considers that the review applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, 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 review applicant more time in which to comment on or respond to the information detailed above.

9. Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the aforementioned invitation.

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 first named visa applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

12. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the first named visa applicant by a standard business sponsor that has not ceased.

13. The Tribunal notes that the nomination of the first named visa applicant for the position of Contract Administrator (ANZSCO 511111) by Leanne Maree Mirkin (the nominator) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the first named visa applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.457.223(4)(a) are not met.

14. For the reasons expressed 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 visa applicant would be able to satisfy the specific criteria for those streams.

15. In relation to the second and third named visa applicants, the Tribunal notes that cl.457.321 requires that secondary visa applicants are members of the family unit of a person (the primary visa applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

16. Given that the first named visa applicant has not met the requirements for the grant of a Subclass 457 visa, and is not the holder of a Subclass 457 visa, it follows that the second and third named visa applicants do not satisfy the requirements of cl.457.321. The Tribunal so finds.

    DECISION

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

    K. Chapman
    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.