Rafferty (Migration)

[2020] AATA 3143

Rafferty (Migration) [2020] AATA 3143 (28 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pedtra Thomas Rafferty

CASE NUMBER:  1723342

DIBP REFERENCE(S):  BCC2017/749984

MEMBER:Karen Synon

DATE:28 July 2020

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 28 July 2020 at 11:03am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass (Temporary Work (Skilled)) – standard business sponsorship stream – no evidence of approved nomination of occupation – no response to tribunal’s s 359A invitation to comment – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cl 187.223(4)(a)

CASE

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).

2. The visa applicant applied for the visa on 24 February 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 (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 20 September 2017 on the basis that cl.457.223(4)(a) was not met because he was not the subject of an approved nomination.

5. The applicant applied for review of the primary decision on 28 September 2017 and provided a copy of the department’s decision.

6. The applicant was represented in relation to the review.

7. On 13 July 2020 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting him to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating a review of Tribunal and Department records suggested that he was not the subject of an approved nomination  Further, there was no information contained on the Department’s file records that he is the subject of an approved nomination by a standard business sponsor and that on 18 March 2016 the 457 (Temporary Work (Skilled)) visa was repealed and closed to new applications  The applicant was advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, he must be the subject of an approved nomination by a standard business sponsor.  Comments or a response in writing were invited by 27 July 2020.

8. The s.359A invitation was sent to the applicant’s representative’s email address on 13 July 2020.  In this letter the applicant was advised that if a response or comments were not provided in writing by 27 July 2020, 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.

9. The applicant did not provide comments or a response within the prescribed period and no extension of time in which to provide comments or respond was received or granted within the prescribed period.

10. 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 via email at his representative’s 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.

11. In doing so the Tribunal records that no substantive correspondence or submissions have been received from the applicant since October 2017, over 2½ years ago.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

14. 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.

15. As detailed to the applicant in accordance with s.359A, the Tribunal raised information indicating that there is no information contained on the Department’s or Tribunal’s records that he is the subject of an approved nomination by a standard business sponsor.

16. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

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

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 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Karen Synon
    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.