Lin (Migration)

[2021] AATA 1744

Lin (Migration) [2021] AATA 1744 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jui Yang Lin
Ms Yu-Chih Chen

CASE NUMBER:  1823907

HOME AFFAIRS REFERENCE(S):          BCC2017/1643245

MEMBER:Mary Sheargold

DATE:1 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 01 June 2021 at 3:00pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – non-appearance before the Tribunal – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 362B, 363
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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

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 8 May 2017.

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 8 August 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 by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

8. At the outset, the Tribunal notes that the applicants were granted Subclass 482 visas on 14 September 2018.  The Tribunal wrote to the applicant on 16 January 2020 to ascertain whether they wished to continue with this review given they now held a substantive visa.  There was no response to the Tribunal’s letter.

9. The applicants were invited to appear before the Tribunal by telephone on 31 May 2021 by invitation dated 14 May 2021.  On the same day, the applicants’ representative wrote to the Tribunal stating that his client, Jui Yang Lin, wished to withdraw this application for review.  The representative’s email contained no further information.  On 17 May 2021, the Tribunal wrote to the applicants requesting a formal withdrawal form be completed and lodged with the Tribunal.  As at the date of this decision, no response to that letter has been received.

10. A Tribunal officer contacted the representative on both 24 May 2021 and 27 May 2021. On the first occasion, he advised the Tribunal officer that he had been unable to contact his clients to have the form completed.  On the second occasion, the Tribunal officer advised that the hearing listed for 31 May 2021 would proceed as scheduled unless the form was received.  The representative advised the Tribunal officer that he understood this, and would advise the Tribunal if he heard anything from his clients.

11. The applicants failed to attend the hearing scheduled for 31 May 2021 at 11:00am AEST.  In the circumstances, the Tribunal notes that s.362B(1A)(a) applies, and the Tribunal may proceed to make a decision on this application without taking any further action to allow or enable the applicant to appear before it. 

12. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide further evidence to support this review application.

13. In doing so, the Tribunal has taken into account the decisions in the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] 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[3] regarding the reasonableness of any request for an adjournment, and the Full Federal Court of Australia decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617.

    [2] [2012] FMCA 28.

    [3] [2013] HCA 18 (8 May 2013).

    [4] [2014] FCAFC 1 (4 February 2014).

    [5] [2014] FCA 915 (28 August 2014).

14. The Tribunal has considered whether, in the circumstances of this case, information that the first named applicant meet the requirements in cl.457.223(4)(a) is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information already, and the significance of the information to the applicants.

15. The Tribunal has had regard to the fact that the application was refused by the Department on 8 August 2018 because the delegate concluded that the first named applicant had not demonstrated that they had an approved nomination to support the application.  The applicants submitted a copy of the primary decision record with the review application.  As a result, the Tribunal observes that the applicants have been aware for more than 33 months of the reasons for the nomination application refusal.

16. Further, as noted above, the applicants have provided no further information to the Tribunal to demonstrate that the first named applicant can satisfy the requirements of cl.457.223(4)(a) since the application for review was received on 17 August 2018.

17. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal notes that it is uncertain if and when the applicants will provide information in writing as to whether the first named applicant meets the requirements of cl.457.223(4)(a). The Tribunal is not disposed to delay making its decision indefinitely.

18. 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 applicants more time in which to demonstrate that they meet the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

19. 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.

20. The applicants have provided no additional information to the Tribunal to support the application for review.  The application was refused by the delegate because the first named applicant did not have an approved nomination to support the application.  There is no evidence before the Tribunal at the time of this decision to demonstrate that the first named applicant has an approved nomination as required by cl.457.223(4)(a)(i) of the Regulations.  Therefore, the Tribunal is unable to find that there is an approved nomination to satisfy cl.457.223(4)(a)(i), and so the requirements of cl 457.223(4)(a) are not met.

21. 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.

22. Pursuant to cl.457.321, the Tribunal must also affirm the decision to refuse to grant a Subclass 457 visas to the secondary applicant as they are not the member of a family unit of a person who holds a Subclass 457 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    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.