McLoughlin (Migration)

[2019] AATA 4694

McLoughlin (Migration) [2019] AATA 4694 (29 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr John Michael McLoughlin
Miss Lorraine Mary Copper

CASE NUMBER:  1800594

DIBP REFERENCE(S):  BCC2017/1386800

MEMBER:Nicola Findson

DATE:29 October 2019

PLACE OF DECISION:  Perth

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

Statement made on 29 October 2019 at 9:27am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – standard business sponsor – nomination of position expired – legislative amendments – no response to Tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), r 2.75, Schedule 2, cls 457.223(4)(a), 457.321

CASE
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 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 14 April 2017. 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.

3. The delegate refused to grant the visas on 22 December 2017 on the basis that the first named applicant (the applicant) did not satisfy cl.457.223(4)(da), and therefore cl.457.223(4) as a whole,  because the applicant had not demonstrated that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

4. The applicants applied to the Tribunal on 8 January 2018, for a review of the delegate’s decision and provided a copy of the primary decision record with the application. 

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 for the Tribunal in this case is whether the applicant meets the requirements of cl.457.223(4)(a).  This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and the approval of the nomination has not ceased.

8. The applicant applied for his visa on the basis of his proposed employment with DCL Contracting Group Pty Ltd, in the position of Carpenter (ANZSCO 331212).  The nomination for this position was approved on 16 October 2017.  Under the terms of r.2.75, this nomination expired on 16 October 2018.

9. On 14 October 2019, the Tribunal wrote to the applicants, via their registered migration agent, pursuant to s.359A of the Act, and invited them to provide comments on the following information that it considered would be part of the reason for affirming the decision under review in writing. The particulars of the information are provided as follows:

   ·“It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under s.140GB of the Act.

   ·A review of your file and Departmental records suggests that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for DCL Contracting Group Pty Ltd in respect of you expired on 16 October 2018.

   ·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 Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.”

10. The invitation was sent to the address of the applicants’ representative provided in connection with the review and advised that, if the comments were not provided in writing by 28 October 2019, 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.

11. 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

12. Based on the evidence before it, the Tribunal is not satisfied that the first named applicant is, at the time of Tribunal’s decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased.  The Tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a).

13. As each limb of subclause 457.223(4) must be satisfied, this finding is determinative of the review and it is unnecessary to make findings in relation to subclause 457.223(4)(da).

14. As the first named applicant does not satisfy the primary criteria for the grant of a subclass 457 visa, the second named applicant does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 457 visa.

15. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Nicola Findson
    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.