Nguyen (Migration)

[2022] AATA 1877

Nguyen (Migration) [2022] AATA 1877 (1 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Binh Anh Nguyen
Mrs Ngoc Thanh Tuyen Lam

CASE NUMBER:  1900821

HOME AFFAIRS REFERENCE(S):          BCC2018/956239

MEMBER:Penelope Hunter

DATE:1 March 2022

PLACE OF DECISION:  Sydney

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

Statement made on 01 March 2022 at 9:57am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Carpenter and Joiner – subject of an approved nomination – non-appearance before the Tribunal – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 441A
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 applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 28 February 2018. The first named applicant is the primary visa applicant (the applicant). The second named applicant, Mrs Ngoc Thanh Tuyen Lam (Mrs Lam), is his spouse and has sought the visa on the basis of being a member of the family unit of the applicant.

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 of Schedule 2.

4. The delegate refused to grant the visas on 4 January 2019 on the basis that cl 457.223(4)(a) was not met because the related nomination filed by the applicant’s sponsoring employer, HIBOB PTY LTD was not approved.

5. The Tribunal received an application for review from the visa applicants on 12 January 2019.

6. On 20 January 2022, the Tribunal wrote to the visa applicants and advised that it had considered all the material before it relating to the application but was unable to make a favourable decision on the basis of that information alone. The visa applicants were invited to attend a telephone hearing on 28 February 2022 to give evidence and present arguments. The hearing was to take place during the COVID-19 pandemic and the Tribunal determined it was reasonable in the circumstances to hold a hearing by telephone. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The invitation set out the telephone number, provided by the visa applicants to the Tribunal, that they would be contacted on for the purposes of the hearing. The visa applicants were requested to advise the Tribunal if the number was incorrect or if they wished to be contacted on a different number. The invitation further stated that if the visa applicants did not appear at the Tribunal hearing, the Tribunal may make a decision on the review application with taking further action to allow or enable them to appear. The Tribunal also sent SMS message reminders about the hearing to the visa applicants one week and one business day before the scheduled hearing. 

7. On 28 January 2022, the Tribunal wrote to the visa applicants pursuant to the provisions of s 359A of the Act inviting them to provide comment on information that it considered would be a reason or a part of a reason for affirming the decision under review. The information related to the applicant’s sponsoring employer, HIBOB PTY LTD and that on review, the Tribunal had made a decision on 10 October 2021 to refuse the nomination. The Tribunal explained the relevance of the information, the visa applicants were informed that if the Tribunal relied on the information that the Tribunal may find that the relevant nomination had not been approved and that the applicant did not meet the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations which would be a reason for the decision under review being affirmed.

8. On 24 February 2022, the Tribunal received a completed Change of Contact Details form for Mrs Lam.

9. On 28 February 2022, the Tribunal received an email from Mrs Lam requesting that the Tribunal cancel the hearing as she would not attend and requesting that she be advised of the Tribunal decision as soon as possible. A representative of the Tribunal replied by email and noted that Mrs Lam did not wish to attend, however she was advised that as the Tribunal had not received communication from the applicant, the hearing would still proceed.

10. The applicant did not appear before the Tribunal on 28 February 2022. Several attempts were made to contact him around the hearing time and there was no response. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant, Mr Binh Anh Nguyen,   was properly invited to a hearing in accordance with s 441A(5)  of the Act and that the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the applicant about the hearing. No satisfactory reason for the non-appearance has been given.

11. The Tribunal has determined to proceed to a decision without taking further steps to allow the applicant to appear before it. 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 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. The applicant applied for the visa on the basis of a nomination in the position of Carpenter and Joiner (ANZSCO 331211) by their sponsor HIBOB PTY LTD. As set out in the decision of the delegate of the Minister, and provided to the Tribunal on review, this nomination was refused by the Department in the first instance on 5 December 2018.

15. HIBOB PTY LTD had applied to the Tribunal for a review of the Department’s decision to refuse the nomination. As set out in the letter to the visa applicants sent pursuant to s 359A of the Act, upon review the decision to refuse the nomination application was affirmed by the Tribunal on 11 October 2021.

16. Therefore on the evidence the Tribunal finds that the relevant nomination by HIBOB PTY LTD in respect of the applicant has not been approved. There is no evidence that the applicant is the subject of an approved nomination and the applicant has not met cl 457.223(4)(a). It therefore follows that the primary criteria for the grant of the visa to the applicant in cl 457.224 of Schedule 2 to the Regulations is not met as a whole.

17. Mrs Lam has sought the visa on the basis of being a member of a family unit of a person who satisfies the primary criteria. As the applicant does not satisfy the primary criteria the secondary criteria for the grant of the visa is specified in cl 457.321 of Schedule 2 to the Regulations is also not met by Mrs Lam.

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  by the applicant and there is no evidence that either the applicant or Mrs Lam would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Penelope Hunter
    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.