Pinthong (Migration)

[2021] AATA 2600

Pinthong (Migration) [2021] AATA 2600 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Prin Pinthong

CASE NUMBER:  1823692

HOME AFFAIRS REFERENCE(S):          BCC2017/1998519

MEMBER:Alison Mercer

DATE:22 July 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 July 2021 at 3:01pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination –refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359(C)(2), 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

CASES

Chen v MIBP [2016] FCCA 2351

Hasran v MIAC (2010) 183 FCR 413

Huo v MIMA [2002] FCA 617

Manna v MIAC [2012] FMCA 28

MIAC 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 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 6 June 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 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 9 August 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by an approved Standard Business Sponsor (SBS). The delegate found that the Department had earlier rejected the nomination of the applicant made by his employer, Sedap Kitchen Pty Ltd.

5. The Tribunal received a review application from the applicant on 9 August 2018. The review application was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Mark Ryan, as his representative and authorised recipient for correspondence.

6. On 22 June 2021, the Tribunal wrote to the applicant via his agent to invite him to attend a telephone hearing on 20 July 2021 to give evidence in support of the application.

7. On 28 June 2021, the Tribunal wrote again to the applicant via his agent, to invite him, pursuant to s.359A of the Act, to comment on or respond to information held by the Tribunal. The Tribunal advised that the particulars of the information it held were as follows:

   ·at the time the applicant made his visa application on 6 June 2017, he was nominated by his employer, Sedap Kitchen Pty Ltd, as a Café or Restaurant Manager;

   ·the Department rejected this application on 9 August 2018 because the delegate found that the applicant did not meet cl.457.223(4)(a) of Schedule 2 to the Migration Regulations as he was not the subject of an approved nomination at the time of the delegate’s decision. The delegate’s findings were made on the basis that the applicant’s employer’s nomination of him for the occupation of Café or Restaurant Manager had been rejected by the Department;

   ·the applicant applied to the Tribunal on 16 August 2018 for review of the Department’s decision to reject his subclass 457 visa application;

   ·the applicant’s nominating employer, Sedap Kitchen Pty Ltd, was rejected by the Department and the employer lodged an application for review of that decision with the Tribunal on 20 July 2018;

   ·the Tribunal’s records indicated that Sedap Kitchen Pty Ltd lodged an application for review of the decision to refuse its nomination with the Tribunal but that the Tribunal (differently constituted) affirmed the refusal decision on 30 April 2021; and

   ·accordingly, there was currently no approved nomination of the applicant by Sedap Kitchen Pty Ltd, and the decision to refuse the nomination was not under review by the Tribunal.

8. The Tribunal advised that this information was relevant to the review because, subject to the applicant’s comments or response, it indicated that:

   ·the applicant was not the subject of an approved nomination, as required by cl.457.223(4)(a);

   ·this would be the reason (or part of the reason) for the Tribunal to affirm the decision under review, as it was a requirement that the primary applicant met cl.457.223(4)(a) at the time of decision; and

   ·there was no evidence that the applicant met the criteria in the other streams of the subclass 457 visa other than the Standard Business Sponsorship (SBS).

9. The Tribunal also noted that since 18 March 2018, major legislative amendments were made to the subclass 457 visa category and their associated nominations, such that the subclass 457 visa program was closed and therefore a nomination by a new employer now would not satisfy cl.457.223(4)(a) in respect of a subclass 457 visa application lodged prior to 18 March 2018.

10. The Tribunal requested that the applicant provide his response or comments (or ask for an extension of time to do so) by 12 July 2021, noting that if the applicant failed to do so by the due date, he would lose his entitlement to a hearing, the hearing scheduled for 20 July 2021 would be cancelled, and the Tribunal would proceed to make its decision on the available evidence.

11. The Tribunal did not receive comments or a response from the applicant by 12 July 2021. Nor did it receive a request for an extension of time to do so.

12. On 13 July 2021, the Tribunal wrote again to the applicant to advise them that as the Tribunal did not receive a response or a request for an extension of time by the due date, the Presiding Member had determined that he had lost his right to appear before the Tribunal to give evidence and present arguments, and that, therefore, the hearing scheduled for 20 July 2021 had been cancelled. The Tribunal advised that the Presiding Member agreed to defer making a decision in this matter until 20 July 2021 to enable him to provide additional material he wished to provide to support the case.

13. The applicant did not provide any further material or submissions by 20 July 2021, and the Tribunal has received no further communication from him or his agent to date.

14. If a person is given a formal invitation to provide comments or a response to information put to him or her under s.359A and does not do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the response or comments.[1] Moreover, if a person fails to respond to a written invitation within the prescribed period (or as extended), the review applicant also loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review.[2] In the case of a review under Part 5 of the Migration Act (under which Part this review application falls), the language of s.363A operates to remove any discretion which the Tribunal may have had to allow a person to do something where a provision of Part 5 states that the person is not entitled to do so.[3] Therefore, once the applicant has lost their entitlement to a hearing, the effect of ss.359C(2), 360(3) and 363A is that the Tribunal has no power to invite the applicant to a hearing.

    [1] ss 359C(2), 424C(2). 

    [2] ss 360(3), 425(3).

    [3] Hasran v MIAC (2010) 183 FCR 413 at [26]. This confirms the views expressed in M v MIMA (2006) 155 FCR 333 at [46], and MIMA v Sun (2005) 146 FCR 498, for example.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

16. 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.

17. As set out in the Tribunal’s s.359A letter of 25 June 2021, the Department and Tribunal’s records indicate that the applicant’s employer, Sedap Kitchen Pty Ltd, made a nomination of the applicant which was refused by the Department.  Although the applicant’s employer sought review of that refusal decision with the Tribunal, the employer’s review application for the refusal decision was affirmed by the Tribunal (differently constituted) on 30 April 2021.

18. The Tribunal notes that it provided additional time to the applicant to provide information, even though he failed to respond to the Tribunal’s s.359A letter, but he elected not to do so. Significantly, the Tribunal is of the view that even if the applicant were able to secure a new nomination, this would not satisfy cl.457.223(4)(a).

19. This is because of legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, which repealed the Class UC subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination from another employer, even if approved, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the temporary short stay (subclass 482) visa or existing subclass 482 or 457 visa holders: r.2.72(1)(b). As these circumstances do not apply to the applicant, the Tribunal considers that a nomination lodged after 18 March 2018 cannot support an application for a subclass 457 visa that has not been finally determined. In the circumstances, it would be futile for the Tribunal to further delay the making of the decision on this application for review.

20. In deciding not to defer making its decision, the Tribunal has had regard to the Court's considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes. Similarly, in the decision in Chen v Minister for Immigration and Border Protection [2016] FCCA 2351, the Court upheld a decision by the Tribunal not to defer a review application regarding whether the applicant met the criteria in cl.457.223(4)(a) until the outcome of a pending nomination application.

21. The Tribunal finds that the requirements of cl.457.223(4)(a) are not met by the applicant.

22. 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

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

    Alison Mercer
    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.