McDonald (Migration)

[2021] AATA 5371

McDonald (Migration) [2021] AATA 5371 (15 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Peter Richard McDonald

CASE NUMBER:  2008798

HOME AFFAIRS REFERENCE(S):          BCC2016/1342323

MEMBER:R. Skaros

DATE:15 November 2021

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 15 November 2021 at 9:14am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Federal Circuit Court remittal – standard business sponsor – Construction Project Manager – subject of an approved nomination – no response to s 359A invitation – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 of a delegate of the Minister for Immigration and Border Protection to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 2 April 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 (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 visa on 6 December 2016 on the basis that cl 457.223(4)(a) was not met because the associated nomination was refused by the Department.  

5. On 2 January 2019 the Tribunal (differently constituted) affirmed the delegate’s decision to refuse the grant of the visa. The applicant sought judicial review of that decision and by Order dated 19 May 2020 the Court remitted the matter to the Tribunal for reconsideration.

6. On 19 October 2021 the Tribunal wrote to the review applicant pursuant to s 359A of the Act, inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing.

7. The invitation was sent to the last email address provided in connection with the review and advised that, if the comments were not provided in writing by 2 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s 359C applies and pursuant to s 360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s 363A of the Act is that if a review 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.

9. The Tribunal is satisfied that the invitation was sent to the authorised recipient by email. The email was not returned to sender and the applicant has not made any contact with the Tribunal to indicate that he intends to respond. The Tribunal has also had regard to the issue in the review, details of which are set out below, and has decided in the circumstances of this case to proceed to decision without taking further steps to obtain the comments.

10. The applicant was represented in relation to the review by his registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

13. 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.

14. On 28 November 2018, the most recent nomination made by Chomp Excavation & Demolition Pty Ltd for the occupation of Construction Project Manager (ANZSCO 133111) in relation to the applicant was refused by the Department. Chomp Excavation & Demolition Pty Ltd applied for review of the nomination refusal, however, on 20 September 2021, the Tribunal affirmed the application for review of the nomination made in relation to the applicant.

15. The above information was particularised in the s.359A letter that was sent to the applicant on 19 October 2021. The Tribunal explained the relevance of this information: that it is a requirement for the grant of the visa that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act for the purposes of the Subclass 457 visa: cl.457.223(4)(a). The Tribunal also informed the applicant that if it relies on the information, it may find that a nomination of an occupation in relation to him has not been approved and, due to legislative changes, that a new application for approval cannot be made. Consequently, the applicant would not be able to meet the requirements of cl.457.223(4)(a).

16. The Tribunal also informed the applicant that the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Tribunal noted that the Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications. The effect of the legislative changes is that the applicant is unable to rely on a new nomination to support his pending application for a Subclass 457 visa.

17. As noted above, the applicant did not respond to the s.359A letter, and the evidence before the Tribunal indicates that the applicant is not the subject of a current approved nomination made by an approved business sponsor for the purposes of the Subclass 457 visa. For these reasons the requirements of cl 457.223(4)(a) are not met.

18. 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

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

    R. Skaros
    Senior 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.