Manepalli (Migration)

[2020] AATA 2269

Manepalli (Migration) [2020] AATA 2269 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Santhosh Kumar Manepalli

CASE NUMBER:  1722465

DIBP REFERENCE(S):  BCC2016/2880441

MEMBER:Denise Connolly

DATE:28 May 2020

PLACE OF DECISION:  Sydney

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

Statement made on 28 May 2020 at 12:59pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 30 August 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 (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 visa on 6 September 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination that had not ceased.

5. On 8 May 2020 the Tribunal invited the applicant to participate in a hearing on 26 May 2020, by conference telephone, to give evidence and present arguments as to why he believed the delegate’s decision was wrong. The invitation was sent to the authorised recipient, his representative and registered migration agent, using the email address provided for correspondence.  Two SMS reminders were sent, 5 days and 1 day before the hearing, reminding the applicant of his hearing.

6. On 25 May 2020 the applicant’s representative wrote to the Tribunal to advise that she had tried to contact the applicant, both by email and mobile phone to advise him of his hearing. His mobile phone was disconnected. He did not respond to the email. She believes that he has departed Australia. She did not have instructions to withdraw his appeal but indicated it was now for the Tribunal to make a decision on the appeal.

7. On the day and time of the hearing the Tribunal attempted to contact the applicant by phone using the number he provided but he did not answer his phone to participate in the hearing. He has not contacted the Tribunal seeking a postponement of hearing. The Tribunal is satisfied it made reasonable attempts to inform the applicant of the hearing. It has decided not use its discretion to reschedule the applicant’s appearance. It has proceeded to make a decision on the review without taking further action for him to appear before it.

8. 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

9. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a) which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. There is no evidence before the Tribunal that the applicant meets this requirement. The Tribunal is satisfied the applicant was aware that this was the issue before the Tribunal as he provided a copy of the delegate’s decision record when making his review application. His representative has not provided any further evidence to demonstrate he meets this requirement. The Tribunal is not satisfied the applicant is the subject of an approved nomination of an occupation by a standard business sponsor that has not ceased.

11. Accordingly, the Tribunal is not satisfied the requirements of cl.457.223(4)(a) are met.

12. 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

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

    Denise Connolly
    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.