Ozkul (Migration)

[2018] AATA 185

Ozkul (Migration) [2018] AATA 185 (2 February 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Serdar Ozkul

CASE NUMBER:  1616898

DIBP REFERENCE(S):  BCC2016/281570

MEMBER:Susan Trotter

DATE:2 February 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 02 February 2018 at 10:55am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – No approved nomination of an occupation

LEGISLATION
Migration Act 1958, ss 65, 359C, 360(3), 363
Migration Regulations 1994, Schedule 2 cl 457.223

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2014] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 19 January 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 (the Regulations).

4. 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.

5. 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.

6. The delegate refused to grant the visa on 23 September 2016 on the basis that cl.457.223(4)(a) was not satisfied because the applicant’s proposed employer was not an approved standard business sponsor as required and there was therefore no approved nomination in place for him.

7. The application lodged an application for review with the Tribunal on 12 October 2016.

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

9. On 17 January 2018, the Tribunal invited the applicant to comment on or respond to certain information before it and to provide information addressing the requirements of the visa. The Tribunal’s letter stated as follows:

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.

   Invitation to comment on or respond to information

   In conducting the review, the Tribunal is required by the Migration Act 1958 (the Act) to invite you to comment on or respond to certain information which the Tribunal considers would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

   Please note, however, that the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   ·On 19 January 2016, you lodged an application for a Subclass 457 – Temporary Work (Skilled) visa;

   ·Department of Immigration and Border Protection records indicate that on 19 January 2016, Yimu Signs Pty Ltd lodged an application for approval as a standard business sponsor with the Department.

   ·On 19 July 2016, the Department refused to approve Yimu Signs Pty Ltd as a standard business sponsor. As a result, the Department advised you that your proposed employer did not have an approved nomination in place for you.

   ·On 5 August 2016, Yimu Signs Pty Ltd lodged an application for review with the Tribunal in respect of the decision to refuse its application for approval as a standard business sponsor.

   ·On 16 January 2018, the Tribunal affirmed the decision to refuse Yimu Signs Pty Ltd’s application for approval as a standard business sponsor.

   ·As a result, there is no evidence as at the date of this letter that you are the subject of an approved business nomination that has not ceased at the time of decision as required by paragraph 457.223(4)(a) of the Migration Regulations 1994 (the Regulations).

   This information is relevant to the review for the following reasons:

   ·Paragraph 457.223(4)(a) of the Regulations provides:

   (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 application 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;

   ·Accordingly, based on the information currently before the Tribunal, the Tribunal may find that you are not the subject of an approved nomination under section 140GB of the Act as required by paragraph 457.223(4)(a) of the Regulations; and

   ·Unless you are the subject of an approved nomination made by an approved business sponsor, the approval of which has not ceased at the time the Tribunal makes its decision, you may not meet the requirements of paragraph 457.223(4)(a) of the Regulations.

   ·Consequently, if the Tribunal makes this finding then it would have no option other than to affirm the decision under review.

   You are invited to give comments on or respond to the above information in writing.

   Invitation to provide information

   You are also invited to provide the following information in writing:

   ·Information that confirms for the purposes of paragraph 459.223(4)(a) that there is:

   o   a nomination of an occupation in relation to you that has been approved under section 140GB of the Act;

   o   the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

   o   the approval of the nomination has not ceased as provided for in regulation 2.75.

   Timeframe to give comments or response and provide information

   Your comments or response and the information should be received by 31 January 2018. If the comments or response or information are in a language other than English, they must be accompanied by an English translation from an accredited translator.

   If you cannot provide either the written comments or response or the information or both by 31 January 2018, you may ask the Tribunal for an extension of time. If you make such a request, it must be received by the Tribunal before 31 January 2018 and you must state the reason why the extension of time is required.

   The Tribunal will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

   Consequences of not responding to either invitation

   If the Tribunal does not receive either your comments or response or the information within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. The invitation was sent to the applicant’s nominated authorised recipient, his registered migration agent, at the address last provided in connection with the review, being the recipient’s email address as advised to the Tribunal.

11. The Tribunal did not receive any response to its letter of 17 January 2018, nor the information invited to be provided, within the prescribed time for responding to the statutory invitation, nor was an extension of time sought. As the applicant failed to provide written comments or a response or the information invited to be provided within the prescribed time, subsections 359C(1) and (2) of the Act apply and the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s comments/response or to obtain the information invited to be provided.

12. Further, as subsections 359C(1) and (2) of the Act apply to the applicant, he loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: subsection 360(3) of the Act.

13. Although neither the applicant nor his representative has requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support his application for review.

14. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2014] FMCA 28, where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

15. The applicant and his representative did not provide any response or comment to the Tribunal invitation, nor the information invited to be provided, within the prescribed period set for this purpose.

16. The Tribunal has taken into account the fact that the applicant has had the benefit of representation from a registered migration agent in order to assist with him with this application and considers it reasonable to expect that applicant’s representative, as a registered migration agent, has an understanding of the requirements of the legislation and the implications of the invitation the Tribunal sent to the applicant on 17 January 2018.

17. In these circumstances, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that he meets the requirements of paragraph 457.223(4)(a) for the purposes of his subclass 457 visa application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

20. 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.

21. As indicated in the 17 January 2018 letter to the applicant, on 19 July 2016, the Department refused to approve the applicant’s proposed employer, Yimu Signs Pty Ltd, as a standard business sponsor and as a result there was no approved nomination in place for the applicant as required.

22. On 16 January 2018, the Tribunal affirmed the decision to refuse Yimu Signs Pty Ltd’s application for approval as a standard business sponsor. As a result the Tribunal finds that the applicant’s proposed employer is not a standard business sponsor at the time of its decision.

23. On 17 January 2018, the Tribunal invited the applicant to comment upon or respond to this information, including the fact that this information meant that he was not the subject of an approved business nomination that has not ceased at the time of decision, as required by paragraph 457.223(4)(a), and/or to provide information that he4 was the subject of an approve nomination.

24. However there has been no response to the Tribunal’s invitation.

25. The Tribunal therefore finds that at the time of its decision there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

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

27. 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 applicant would be able to satisfy the specific criteria for those streams.

    OTHER MATTERS

28. The Tribunal notes that the Department’s file contains a non-disclosure certificate (a 375A certificate) relating to information on its file.

29. The Tribunal considers the certificate to be valid, however, the information the subject of the certificate is not relevant to the issues before the Tribunal. Accordingly, the Tribunal had no regard to this information.

    DECISION

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

    Susan Trotter
    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.