Prajapati (Migration)

[2018] AATA 5143

Prajapati (Migration) [2018] AATA 5143 (18 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shyam Sundar PRAJAPATI

CASE NUMBER:  1604345

DIBP REFERENCE(S):  BCC2015/2750145

MEMBER:Karen Synon

DATE:18 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2018 at 8:11am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – subclass 457 – not a member of the family unit of visa holder – primary applicant withdrew application with first employer – second application with second employer refused – not the family member of subclass 457 visa holder – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994, Schedule 2, cl 457.321

CASES

Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 22 March 2016 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 21 September 2015. At the time the 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).

3. The delegate refused to grant the visa on the basis that cl.457.321 was not met because the applicant was not a member of the family unit of a person who was the holder of a Subclass 457 visa.

4. The applicant applied for review of the primary decision on 30 March 2016 and provided a copy of the delegate’s decision.

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

   Background

   ·Department case notes dated 30 March 2016 record that the (former) representative contacted the department to advise that he was encountering an error when he tried to input the details of the secondary applicant (the review applicant) for a new Subclass 457 application.  He was advised that this was because although the primary review applicant had withdrawn her previous Subclass 457 application, the dependent’s application was not withdrawn.  Consequently his application had been refused and he therefore may be section 48 barred.  A further department case note records that the former representative advised they would likely appeal to the AAT in respect of the dependant applicant.

   ·The review applicantion was subsequently lodged later on 30 March 2016.

   ·On 21 September 2018 the Tribunal sent a letter (in error)[1] advising that the Subclass 457 visa class had closed on 18 March 2018 and asked the applicant to either provide information that he was the subject of an approved 457 nomination or, alternatively, if his circumstances had changed, to complete an enclosed withdrawal form and return it to the Tribunal by 5 October 2018.

   ·No response was received.

   ·A hearing was subsequently set down for 1 November 2018. On 5 November 2018 the applicant returned the invitation to hearing form indicating that he did not intend to attend the scheduled hearing.  He did not attend the hearing.

   ·When reviewing the case I noted that the issue on review had been incorrectly identified.  Subsequently, on 28 November 2018 the applicant was advised that the Tribunal’s letter dated 21 September 2018 was sent in error and another letter was sent on the same date in accordance with s.359A.

   359A letter

   [1] Sent before the case was constituted to a Member.

6. On 28 November 2018 the Tribunal wrote to the applicant in the following relevant terms:

   I am writing about your application for review of a decision to refuse you the grant of a Temporary Business Entry (Class UC) visa, Subclass 457.

   In relation to a secondary applicant for a Subclass 457 visa, cl.457.321 requires that, at the time of decision:

   The applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

   The definition of ‘member of ‘the family unit’ is set out in Regulation 1.12.  As it is applicable in this case, it is included as an attachment to this letter.

   One of the primary mandatory criteria for the grant of a 457 visa is cl. 457.223(4)(a) which requires that the primary applicant is the subject of an approved nomination of an occupation which had not ceased.

   Invitation to comment on or respond to information

   The Tribunal has information that it considers would, subject to any comments or response you make, be the reason, or part of the reason, for affirming the decision that is under review.  The purpose of this letter is to invite you to comment on or respond to the information.

   However, please note that the Tribunal has not made up its mind about the information.

   The particulars of the information are:

   Department records confirm that:

   ·On 4 March 2016 Punu Duwal withdrew her 457 application which was associated with a nomination with Yabs Accountants Services Ptd Ltd.  At that time your application was not withdrawn.

   ·Punu Duwal lodged a further 457 visa application, associated with a nomination with MYW Group Pty Ltd but this was refused by the department on 18 July 2016.

   ·Punu Dawal is the not subject of an approved 457 nomination in relation to any other sponsor.  Nor is she the holder of a 457 visa.

   ·Further, the Tribunal notes there is no information on Departmental records indicating that you are the subject of an approved nomination as a primary applicant.

   This information is relevant to the review because cl.457.321 requires that at time of decision you are a member of the family unit of a person who having satisfied the primary criteria is the holder of a Subclass 457 visa.

   This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa.  This is because cl.457.321 requires that at time of decision you are a member of the family unit of a person who is the holder of a Subclass 457 visa.

7. The invitation was sent to the applicant’s email address provided in connection with the review.  The applicant was advised that if a response or comments were not provided in writing by 12 December 2018, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The applicant did not provide comments or a response within the prescribed period and no extension was been sought or granted within the prescribed period.

9. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal.  The effect of s.363A of the Act is that if an applicant has no entitlement to a hearing, the Tribunal has no power to permit him to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicant at his advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

10. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in this case is cl.457.321.  This requires that ‘the applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa’.

12. As put to the applicant in accordance with the provisions of s.359A (and detailed above), there is no evidence before the Tribunal that the applicant is a member of the family unit of his wife or partner (a primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

13. Accordingly, cl.457.321 is not met.

14. Further, there is no information that the applicant himself is the subject of an approved nomination.

15. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

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

    Karen Synon
    Member