McCann (Migration)

[2019] AATA 1854

McCann (Migration) [2019] AATA 1854 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Daniel McCann
Ms Lisa Cunningham

CASE NUMBER:  1619525

DIBP REFERENCE(S):  BCC2015/3520011

MEMBER:C. Packer

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 April 2019 at 4:43pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – nomination refused – applicant departed Australia – intention to perform occupation not genuine – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363,
Migration Regulations (Cth) 1994, Schedule 2, cl 457.223

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 4 November 2016 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 visas on 25 November 2015. At the time the 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant) did not meet cl.457.223(4) because the nomination of an occupation by his prospective employer Scaffcrew Pty Ltd was refused by the Department on 15 September 2016.

4. On 18 March 2019 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to provide information that addressed the visa requirements. The Tribunal’s letter also invited the applicant to comment on or respond to certain information which the Tribunal considered would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 1 April 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicants have not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in this case is whether the applicant’s intention to perform the occupation is genuine (cl.457.223(4)(d)(i)). However, the Department’s movement records show that the applicant is not in Australia having departed Australia in May 2017. The Tribunal’s letter dated 18 March 2019 indicated “This information is relevant to the review because it may suggest you do not now have the intention to perform the occupation and you would not be able to satisfy cl.457.223(4)(d)(i).” However, the applicants did not respond to the Tribunal’s invitation to comment.

9. In sum, in light of the applicant’s long absence from Australia, the Tribunal is not satisfied the applicant’s intention to perform the occupation is genuine. The Tribunal finds he does not meet cl.457.223(4)(d)(i). There may be other criteria he does not meet but the Tribunal has not gone on to assess the other criteria.

10. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

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

    C. Packer
    Member