Li (Migration)

[2021] AATA 2207

Li (Migration) [2021] AATA 2207 (27 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shengan Li
Mrs Yan Jiao
Miss Yushu Li

CASE NUMBER:  2009936

HOME AFFAIRS REFERENCE(S):          BCC2016/1722212

MEMBER:Peter Emmerton

DATE:27 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 27 May 2021 at 11:16am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Federal Circuit Court remittal – employer has been voluntarily deregistered – ceased to exist as a legal entity – not an approved standard business sponsor – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140E, 376
Migration Regulations 1994,Schedule 2, cl 457.223

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 and Border Protection 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 13 May 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. 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 24 August 2017 on the basis that cl 457.223(4)(a) was not met. The delegate was not satisfied that the primary applicant’s business activity is subject to an approved business nomination therefore they were not satisfied that paragraph 457.223(4)(a) has been met.

5. This matter was the subject of a previous decision of the Tribunal which determined it did not have jurisdiction to consider the application. The applicants sought review with the Federal Circuit Court and on 14 May 2020. The Court concluded the decision was affected by jurisdictional error and issued the following Orders.

1. That a writ of Certiorari issue directed to the Second Respondent quashing its decision dated 25 October 2019.

2. A writ of Mandamus issue directed to the Second Respondent requiring it to determine the applicant’s application dated 10 September 2017 according to law.

3. The First Respondent pay the Applicant’s costs, fixed in the sum of $1067.0

1. The applicants appeared before the Tribunal on 26 May 2021 to give evidence and present arguments.

2. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

3. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The applicants were informed by the Tribunal that a Certificate had been issued under Section 376 and that it was at the discretion of the Tribunal to disclose its’ contents. The Tribunal stated that it was regarding an email communication that if disclosed might reveal the manner in which the department gathers evidence. The Tribunal stated that it was not material in this matter and would not form part of the decision-making process or be considered.

2. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a).

Requirement for an approved nomination

1. 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.

1. Auservices Pty Ltd applied for approval as a Standard Business Sponsor, (SBS) and that was refused by the delegate on 25 May 2017. As Auservices Pty Ltd was not an approved Standard Business Sponsor the nomination application was not assessed and otherwise finalised.

1. An application was made to the Tribunal on 12 June 2017, by Auservices Pty Ltd, for review of a decision made by a delegate of the Minister for Immigration to refuse an application made for approval as a Standard Business Sponsor, (SBS), under s.140E(1) of the Migration Act 1958 (Cth).

2. On 20 September 2018 the Tribunal found that it did not have jurisdiction and therefore the original decision refusing the Standard Business Sponsorship remained in place. Case reference number 1712419.

3. The applicant sought review with the Federal Circuit Court and on 14 May 2020 the Court concluded the decision was affected by jurisdictional error and issued a writ of Certiorari quashing the decision dated 20 September 2018. It further issued a writ of Mandamus directing the Tribunal to determine the applicant’s application dated 12 June 2017 according to law.

4. On 15 March 2021, case reference number 2009913, the Tribunal determined, based on the evidence before it, that it was not satisfied the applicant company is registered. The Tribunal found that Auservices Pty Ltd has been voluntarily deregistered in July 2018 and that it has ceased to exist as a legal entity. Accordingly, it follows that there is no longer a valid application for review.

5. The Tribunal decided on 15 March 2021, that it did not have jurisdiction in this matter. Subsequently the original decision refusing the Standard Business Sponsorship remains in place.

6. When questioned by the Tribunal the visa applicant stated that he was unsure whether Auservices were attempting to be reinstated. The Tribunal notes the substantial time since the original de-registration. When asked by the Tribunal, he stated that he was unable to provide any evidence that Ausservices had been re-registerd.

7. The Tribunal has again interrogated the ASIC website and there is no evidence to show that Auservices has re-registered.

8. There is no proof before the Tribunal that Auservices Pty Ltd has been re-registered.

1. When the visa applicant was questioned by the Tribunal as to whether he had any evidence to show that Auservices had a current relevant approved SBS or an approved nomination related to their visa application, the visa applicant replied in the negative to both questions.

2. There is no evidence before the Tribunal that Auservices Pty Ltd has an approved SBS or related nomination.

1. The Tribunal notes the delegates original decision dated 25 August 2017 in which they state the following:

‘On 25/05/2017, a decision was taken by the Department to refuse the application for standard business sponsorship approval lodged by the applicant’s prospective employer, AUSERVICES PTY LTD.

As the primary applicant’s prospective employer is not an approved standard business sponsor, the nomination application lodged by the primary applicant’s prospective employer was unable to be assessed.

As the primary applicant’s business activity is not subject to an approved business nomination, I am therefore not satisfied that paragraph 457.223(4)(a) has been met.’

1. As it remains that there is not an approved SBS it is not possible to have a satisfied nomination and therefore Clause 457.223(4)(a) can-not be satisfied.

2. ‘As clause 457.223(4) is not met by the applicant, The Tribunal finds the criteria for the grant of a Temporary Business Entry visa are not met by the applicant.’

3. The information contained in paragraphs 16-17, paragraph 20 and paragraphs 22-25 were put to the applicant under ss.359AA at the hearing. The following statement was then made to the applicant.  ‘I will now ask you to comment on or respond to that information. You don’t have to respond now, you can ask for more time to comment or respond to the information.’

4. The applicant chose to comment and respond after a 5 minute adjournment of proceedings to confer with their representative. They stated that they were confused that the Tribunal had jurisdiction to hear their case but did not have jurisdiction to hear the associated nominator’s case. The Tribunal explained that the Auservices could not be heard as they had ceased to exist as a legal entity and therefore there was not a valid application for review.

5. The representative at the end of the hearing raised the issue that he was not convinced that the Tribunal had jurisdiction to hear this matter. The Tribunal assured him that if he was dissatisfied with the decision, he had the right to appeal if he believed it was in the best interests of his client.

1. It remains that there is not an approved SBS, therefore it is not possible to have a satisfied nomination and subsequently clause 457.223(4)(a) can-not be satisfied.

2. As clause 457.223(4) is not met by the applicant, the Tribunal finds the criteria for the grant of a Temporary Business Entry visa are not met by the applicant.’

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

DECISION

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

Peter Emmerton
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.