Raag (Migration)

[2019] AATA 446

Raag (Migration) [2019] AATA 446 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lauri Raag

CASE NUMBER:  1611450

DIBP REFERENCE(S):  BCC2015/2895267

MEMBER:Michael Ison

DATE:25 February 2019

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 25 February 2019 at 10:38am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visas  – subclass 457 – no approved nomination by standard business sponsor – departmental refusal – withdrew tribunal review of decision – no response to tribunal communication – change of legislation – subclass 457 repealed and replaced with Subclass 482 (Temporary Skills Shortage) – decision under review affirmed

LEGISLATION

Migration Act 1958 ss 65, 140GB, 359A, 359B, 359C, 360(3), 363A
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223(4) rr 4.17, 2.72

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 of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant applied for the visa on 5 October 2015.

2. 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). 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.

3. The delegate refused to grant the visa on 15 July 2016 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination made by an approved standard business sponsor. The delegate found that the applicant’s proposed employer, ABKS Pty Ltd, had its nomination refused on 15 July 2016.

4. The applicant was represented in relation to the review by his registered migration agent who is also a practising lawyer.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

7. 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.

8. On 18 January 2019 the Tribunal wrote to the applicant in accordance with the procedures set out in s.359A of the Act and invited the applicant to comment on or respond to information that was particularised as follows:

   The application for approval of the nominated position made by ABKS Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision by the Tribunal but on 14 January 2019 withdrew that application for review. This means that the nominator’s application for the nominated position has not been approved.[1]

   [1] Tribunal file, folio 36.

9. The Tribunal’s letter explained that this information was relevant to the applicant’s review because it is a requirement for the grant of the visa the applicant has applied for that the position specified in the applicant’s visa application is the subject of an approved nomination. The Tribunal’s letter also explained that the consequence of the Tribunal relying on this information in making its decision is that the Tribunal may find the position specified in the applicant’s visa application is not the subject of an approved nomination and that this would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review. The Tribunal’s letter invited the applicant to comment on or respond to the information by 13 February 2019 in accordance with the requirements set out in s.359B of the Act and the prescribed period for responses established by r.4.17.

10. The applicant has not responded to the Tribunal’s letter and no extension to the prescribed period to respond has been sought. In these circumstances, s.359C of the Act applies and pursuant to s.360(3) of the Act 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 the applicant to appear: Hasran v MIAC [2010] FCAFC 40.

11. In deciding whether to proceed to a decision on the information before it, the Tribunal notes that the applicant has been on notice of the determinative issue in the review, namely whether the applicant is the subject of a current approved nomination, since the delegate’s decision on 15 July 2016. The determinative issue was also particularised in the Tribunal’s letter sent in accordance with s.359A, to which the applicant did not respond. The Tribunal is satisfied that the applicant has had sufficient opportunity to provide information about the determinative issue in the review, including being represented and advised by a registered migration agent who is also a lawyer.

12. The Tribunal also notes that on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 were introduced. Among other things, these regulations repealed and replaced r.2.72 of the Regulations, which set out the criteria for nominations relating to Subclass 457 visa applications, and also repealed the Subclass 457 visa and replaced it with the Subclass 482 (Temporary Skills Shortage) visa. This means new nominations lodged from 18 March 2018 are for Subclass 482 visas or for existing Subclass 457 visa holders and do not support an outstanding application for a Subclass 457 visa. The Tribunal has formed the view that on the information before it the applicant’s case does not have any reasonable prospect of being successful.

13. For the applicant to succeed in this review, he is required to demonstrate that he is the subject of an approved nomination made under s.140GB of the Act for the purposes of a Subclass 457 visa. The evidence before the Tribunal indicates that the applicant is not the subject of such a nomination. Furthermore, given the legislative changes which came into effect on 18 March 2018, it appears that the applicant has no prospect of becoming the subject of an approved nomination that is capable of supporting his application for a Subclass 457 visa.

14. On the evidence before it, the Tribunal finds that there is no approved nomination of an occupation under s.140GB, for the purposes of a Subclass 457 visa, in respect of the applicant.

15. For these reasons the Tribunal finds the requirements of cl.457.223(4)(a) are not 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.

    DECISION

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

    Michael Ison
    Senior 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.