Marshall (Migration)

[2018] AATA 866

Marshall (Migration) [2018] AATA 866 (9 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew Marshall
Mrs Carla Hartley
Miss Carla Marshall
Miss Faith Hartley Marshall
Miss Nadine Hartley Marshall
Miss Rosemarie Hartley Marshall

CASE NUMBER:  1615040

DIBP REFERENCE(S):  BCC2016/668926

MEMBER:Saxon Rice

DATE:9 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 09 February 2018 at 2:54pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Length of awareness of refusal – Not subject of an approved nomination – No pending nominations

LEGISLATION
Migration Act 1958, ss 65, 359, 359A, 359C, 363
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 to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 16 February 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 visas on 12 September 2016 on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) because his proposed employer did not have an approved nomination in place for him.

5. The applicant lodged an application for review with the Tribunal on 17 September 2016, and a copy of the primary decision was included with the application for review.[1] The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.

   [1]T1, f.2

   [2]D1 -   Departmental file, BCC2016/668926,  folio numbered 1-56

6. The applicant appeared before the Tribunal on 6 December 2017 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent. The registered migration agent attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   REQUIREMENT FOR AN APPROVED NOMINATION

10. 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.

11. At the Tribunal hearing, Mr Marshall told the Tribunal that he arrived in Australia on 17 November 2015 on a visitor visa. On 19 November 2015, Mr Marshall registered Echo Asphalts Pty Ltd with the Australian Securities and Investment Commission (ASIC) (the sponsoring business). Mr Marshall told the Tribunal that he began working in the business around February 2016 and he lodged his application for a 457 visa on 16 February 2016.

12. The applicant told the Tribunal about his role as Director of the sponsoring business and as a ‘Gardener’ and manager of the business. He also told the Tribunal that the nomination application by Echo Asphalts Pty Ltd was the only pending 457 nomination application in his favour. The applicant also told the Tribunal that he understood that his proposed employer’s standard business sponsorship application (and therefore his nomination application) was before the Tribunal and that the outcome of his visa application was dependent on the outcome of his proposed employer’s standard business sponsorship application.

13. The Tribunal affirmed the decision not to approve the standard business sponsor application of the applicant’s sponsoring business on 24 January 2018.

14. On 25 January 2018[3] the Tribunal invited the applicant under section 359A of the Act to comment on or respond to certain information before it. Specifically, the Tribunal invited the applicant to comment on or respond to the fact that following the Tribunal hearing, on 24 January 2018, the Tribunal affirmed the decision to refuse the standard business sponsorship application made by Echo Asphalts Pty Ltd. The Tribunal indicated that there was no evidence as at the date of the Tribunal correspondence that he was the subject of an approved business nomination that has not ceased at the time the Tribunal was making its decision as required by paragraph 457.223(4)(a) the Regulations.

    [3]T1, f.94-97

15. In addition, this invitation stated that the Tribunal should receive the applicant’s comments or response by 8 February 2018, or within the period allowed and as extended. This letter further informed the applicant that a failure to do so would mean that he would lose any entitlements he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.[4]

    [4]T1, f.94-97

16. However, the Tribunal did not receive the applicant’s comments or response within the timeframe allowed for this purpose. The applicant also did not request an extension of time from the Tribunal in which to do so.

17. The Tribunal notes that the applicant appeared before it on 6 December 2017 and he told the Tribunal that the standard business sponsorship application (and therefore the business nomination application) of Echo Asphalts Pty Ltd which had been refused by the department (and subsequently affirmed by the Tribunal) was the only business nomination application pending in his favour.

18. The Tribunal notes that its invitation (dated 25 January 2018) was sent to the last relevant (email) address for service provided by the applicant in connection with the application for review to his migration agent and the same email address the Tribunal has been corresponding with the applicant throughout the review process. The Tribunal did not receive any ‘out-of-office’ notifications or automated responses to its email.

19. The Tribunal also observes that, in relation to its invitation under subsection 359(2) of the Act, as the applicant failed to provide the requested information before the time for giving it has passed, subsection 359C(1) applies and the Tribunal may make a decision on the review without taking any further action to obtain the information.

20. The Tribunal has also considered whether, in the circumstances of this case, the information that the applicant meets the requirements in paragraph 457.223(4)(a) is likely to be forthcoming and whether the applicant has had a fair opportunity to address the requirements already, and the significance of the information to the applicant.

21. The Tribunal has had regard to the fact that the visa application was refused by the Department on 12 September 2016 because the delegate concluded the applicant was not the subject of an approved nomination. The applicant submitted a copy of the primary decision record with the review application. The Tribunal also discussed his situation with the applicant at length during the Tribunal hearing on 6 December 2016. As a result, the Tribunal observes that the applicant has been aware for more than 16 months of the reasons for the visa application refusal.

22. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant comments or response and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether he meets the requirements of paragraph 457.223(4)(a) and the Tribunal is not disposed to delaying making a decision indefinitely.

23. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the requirements of paragraph 457.223(4)(a).

24. The applicant has not provided the Tribunal with any information to indicate that he is the subject of an approved nomination or that he has any other nomination applications pending before the department despite being specifically invited to do so.

25. Accordingly, the Tribunal finds that the applicant is not the subject of an approved nomination and for this reason the requirements of cl.457.223(4)(a) are not met.

26. To meet clause 457.321 the applicant’s spouse and children, the second, third, fourth, fifth and sixth-named applicants (the ‘secondary applicants’), must be members of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.

27. As the applicant does not satisfy the primary criteria for a subclass 457 visa, the Tribunal finds that the secondary applicants also do not satisfy clause 457.321 and, therefore, the criteria for a subclass 457 visa.

    CONCLUSION

28. 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

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

    Saxon Rice
    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.