MP Pham Holdings Pty Ltd (Migration)

MP Pham Holdings Pty Ltd (Migration) [2021] AATA 988 (8 April 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  MP Pham Holdings Pty Ltd
VISA APPLICANTS:  Mr Thai Hoa Pham
Mrs Kim Thu Pham
Master Thien An Pham
Master Thien An Pham
Miss Thien An Pham
CASE NUMBER:  1825671
HOME AFFAIRS REFERENCE(S):          BCC2017/2285718
MEMBER:Stavros Georgiadis
DATE:8 April 2021
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 08 April 2021 at 4:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – related nomination application refused and application for review withdrawn – no substantive response to tribunal’s invitation to comment – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (Cth) (the Act).
The visa applicants applied for the visa on 28 June 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 (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.
The delegate refused to grant the visas on 15 August 2018 on the basis that cl.457.223(4)(a) was not met because there was no approved nomination for the position of Hair or Beauty Salon Manager (ANZSCO 142114) in respect of the nominee, Thai Hoa Pham.
The Tribunal sent an invitation to the applicant on 15 February 2021 to provide certain information relevant to the review allowing to 1 March 2021 for a response. There was no response.
On 12 March 2021, the Tribunal sent further correspondence as follows:
… “I … inquire as to whether the case: 1825671 MP Pham Holdings Pty Ltd intends to be withdrawn or if the applicant wishes to proceed to hearing as no response to the invitation to comment or respond to information letter (sent 15/02/21 - response due 1/3/21) has been lodged. Please advise us as to how you wish to proceed or lodge the appropriate corresponding forms. …”
On 28 March 2021 the representative wrote back to the Tribunal as follows:
… “I refer to the correspondence below in relation to MP Pham Holdings Pty Ltd and Mr Thai Hoa PHAM. Please note we no longer have instructions to act for MP Pham Holdings Pty Ltd and Mr Thai Hoa PHAM. My understanding is that Mr Pham no longer wish to proceed with the application. I have copied Mr Pham and Ms Thi Mai Phuong Pham, who is the director of MP Pham Holdings Pty Ltd in this email. …”
As can be ascertained from the above, the review applicant was represented in relation to the review by its registered migration agent until advised of no longer having instructions.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) for the grant of the visas in respect of all applicants (as claimed members of the same family unit).
Requirement for an approved nomination
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4) for the grant of the visa.
Clause 457.223(4)(a) requires that there is an approved nomination by a standard business sponsor of an occupation relating to the applicant, that has not ceased.
On 15 February 2021 the Tribunal wrote to the applicant in accordance with s.359A of the Act inviting comment or response, by 1 March 2021, to adverse information that would, subject to any comments or response by the applicant, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal set out as follows:
… “
· The application for approval of the nominated position made by MP Pham Holdings Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but they have now withdrawn that application for review. This means that the nominator’s application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of
the visa that the position specified in your visa application is the subject of an
approved nomination.
If we rely on this information in making our decision, we may find that the position
specified in your visa application is not the subject of an approved nomination. This
would mean that you do not satisfy a requirement for the grant of the visa and that we
must affirm the decision that is under review. …”
On 1 April 2021 the Tribunal further wrote as follows:
… “I refer to an email sent to you by the Tribunal on 29 March 2021 which responded to your notification that the applicant would no longer be represented and intended to withdraw. In that email (29/3/21) I attached two documents; A change of contact form and an official withdrawal form which I advised needed to be filled out and submitted in order for your request to be considered by the Tribunal. …”
No further correspondence was received by, or on behalf of, the applicant in respect of the application for review. No withdrawal form has been received. In light of this, the Tribunal has proceeded to consider the matter on the papers without taking further steps to enable the applicant to appear at a hearing.
The Tribunal accepts that the employer sponsor, MP Pham Holdings Pty Ltd, has withdrawn the nomination of the position. The Tribunal finds that there is no approved nomination of the position in respect of the applicant.
Having considered the available evidence before it discussed, the Tribunal finds that the nomination of an occupation in relation to the applicant has not been approved as is required under cl.457.223(4)(a).
Therefore, the criteria in cl.457.223(4) are not met.
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. Therefore, the visas in respect of all applicants (as claimed members of the same family unit) are refused: [cl.457.321].
DECISION
The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.
Stavros Georgiadis
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.

[2021] AATA 988

8 April 2021

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Appeal

Standing