Modatholi Raghavan (Migration)

[2021] AATA 2590

Modatholi Raghavan (Migration) [2021] AATA 2590 (9 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jayaram Modatholi Raghavan

CASE NUMBER:  1835696

HOME AFFAIRS REFERENCE(S):          BCC2017/3356176

MEMBER:Ian Berry

DATE:9 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 June 2021 at 11:12am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – 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 Home Affairs 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 14 September 2017.

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 (the 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 15 November 2018 because cl. 457.223(4)(a) was not met: The applicant’s sponsor withdrew its nomination of the applicant.  

   Applicant attending the hearing

5. On 22 February 2021, the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the applicant to give evidence and present arguments at a hearing on 29 March 2020. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may decide on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing. 

6. From 5 December 2018 to on 23 February 2021, the applicant was represented in relation to the review by his registered migration agent Mr P F W Au MARN 9473712. After 23 February 2018, the applicant was without a representative’s withdrawal

7. On 25 February 2021, the applicant submits his hearing response and advises the Tribunal he will require an interpreter in the Malay Indian dialect and his migration representative will not be attending on his behalf.

8. Immediately before the commencement of the hearing, the Tribunal Officer attempted to make contact with the applicant.  The telephone number provided by the applicant to the Tribunal was not a correct number.  The Tribunal Ofc then contacted the migration agent and was only able to speak with a receptionist.  The Tribunal Officer enquired at the office of the migration agent whether the applicant had an alternative mobile number.  contact was made with the applicant, by the Tribunal.  The Tribunal Officer advised of the Tribunal calling in approximately 15 to 30 minutes when, the Tribunal expected to be available.  The applicant requested an interpreter which speaks his dialect of ‘Malayalam/Indian’.  Upon securing the interpreter, the Tribunal then telephoned, on the applicant’s telephone number, in order to commence the hearing.  The hearing officer left four messages with the applicant not any of which resulted in the applicant returning the messages left by the Tribunal. The Tribunal commenced the hearing only to record the securing of the interpreter and details in relation to the attempts to contact the applicant.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

11. 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.

12. The applicant’s sponsor Mr Raman Pillay withdrew his sponsorship on 2 July 2020 by providing to the Tribunal the Withdrawal of application for migration or refugee review – MR Division dated 2 July 2020.

13. On 22 February 2021, the Tribunal wrote to the applicant’s representative with the Invitation to attend a hearing. That form stated ‘by providing you with these documents, we are taken to have given the documents to the applicant.  You (meaning the migration agent) should ensure that the applicant is informed of this invitation as soon as possible’.  Attached to the invitation, was the invitation with the date of hearing 29 March 2021 at Queensland time 10 AM.  This invitation confirmed the applicant’s telephone number that the Tribunal will use for the hearing with a request for the applicant to contact the Tribunal should that not be his telephone number and providing a number at which he can be contacted.

14. Prior to the hearing scheduled for 29 March 2021, the Tribunal, the migration agent withdrew and advised the Tribunal

15. For these reasons the requirements of cl 457.223(4)(a) are not met.

16. 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

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

    Ian Berry
    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.