Liang (Migration)

[2018] AATA 4628

Liang (Migration) [2018] AATA 4628 (23 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Linda Liang

CASE NUMBER:  1611769

DIBP REFERENCE(S):  BCC2015/3252049

MEMBER:Sheridan Lee

DATE:23 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 23 August 2018 at 3:28pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Standard business sponsor stream – Conference and Event Organiser – No approved nomination – failed to provide the requested information within the prescribed period – lost the right to appear before the Tribunal – Decision under review affirmed

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

CASES

Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403
Yang v Minister for Immigration and Citizenship [2010] FMCA 890

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) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 5 November 2015.

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 (the Regulations). 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 visa on 15 July 2016 on the basis that cl.457.223(4)(a) was not met because no nomination of an occupation in relation to the applicant had been approved.

5. The applicant appeared before the Tribunal on 14 May 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Tony Lane, Director and CEO of The Management Edge Pty Ltd. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

8. 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.

9. On 7 August 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·on 1 August 2016, The Management Edge Pty Ly applied to the Tribunal for a review of a departmental decision not to approve a nomination in respect of the applicant, for the occupation of Conference and Event Organiser. On 6 August 2018, the Tribunal affirmed the decision not to approve the nomination.

   ·the Tribunal had regard to information contained on departmental records indicating that the applicant was not the subject of an approved nomination by a standard business sponsor.

10. The letter outlined that the information was relevant to the review because cl.457.223(4)(a) requires that at the time of decision the applicant must be the subject of an approved nomination by a standard business sponsor. It was also explained, that the 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 the grant of a subclass 457 visa.

11. The letter invited comments or a response by 21 August 2018, noting that an extension of time to respond could be requested prior to that date.

12. The applicant did not make any submissions within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from either the applicant or its representative at the time of the Tribunal’s decision.

13. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

14. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

15. As the decision to refuse the nominating employer’s application was affirmed by the Tribunal on 6 August 2018, and the applicant has not submitted any evidence to suggest that she is presently the subject of an approved nomination by a standard business sponsor, the Tribunal finds that the applicant does not meet the requirement in s.457.223(4)(a)(i).

16. Consequently, the requirements of cl.457.223(4)(a) are not met.

17. 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

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

    Sheridan Lee
    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.