Rahman (Migration)

[2019] AATA 2288

Rahman (Migration) [2019] AATA 2288 (11 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Syed Mujeebur Rahman
Ms Asma Sultana
Miss Arisha Mujeeb

CASE NUMBER:  1715364

DIBP REFERENCE(S):  BCC2016/765457

MEMBER:K. Chapman

DATE:11 March 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 11 March 2019 at 3:13pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination of an occupation – multiple extensions of time granted – applicant did not attend hearing – member of the family unit – nomination refused – decision under review affirmed

LEGISLATION

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

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 23 February 2016, including the second named applicant (his wife) in that application. The third named applicant is the daughter of the aforementioned applicants and was born after the visa application was lodged but prior to the delegate’s visa refusal decision.

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 first named 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 visas on 27 June 2017 on the basis that cl.457.223(4)(a) was not met because the first named applicant was not the subject of an approved nomination as required. On 17 July 2017, the first named applicant (hereafter ‘the applicant’) applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with his application for review.

5. On 26 November 2018, the applicant was invited to attend a review hearing scheduled for 12 December 2018. He failed to attend the scheduled review hearing. On 12 December 2018, the Tribunal made a non-appearance initial dismissal decision. On 27 December 2018, the applicant sought re-instatement of his review application on the grounds that the second named applicant is pregnant and he could not attend due to her being ill. On 2 January 2019, the Tribunal re-instated the applicant’s review application.

6. On 3 January 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to provide comments or response in writing to the following information by 17 January 2019:

   ·The application for approval of the nominated position made by Idea Labs Australia Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

7. The Tribunal is satisfied that this invitation was properly despatched to the applicant directly. On 17 January 2019, the applicant requested an extension of time to respond to the aforementioned information. He contended that his wife (the second named applicant) was ill during her pregnancy and he had to care for her and their daughter (the third named applicant). A medical certificate dated 16 January 2019 was submitted, indicating the second named applicant’s estimated date of confinement to be 23 June 2019. No reference was made in that certificate to the second named applicant being ill in the manner contended by the applicant.

8. On 18 January 2019, the Tribunal granted the applicant an extension of time until 1 February 2019 to respond to the aforementioned information. On 1 February 2019, the applicant requested a further extension of time on the basis that his solicitor is located in Sydney, he needs to travel there to ‘collect paper work’ and he cannot do so because he must look after the second and third named applicants. The applicant requested an extension of time until 23 June 2019, being the second named applicant’s expected due date. The Tribunal notes that the applicant has not appointed a representative in this review.

9. On 5 February 2019, the Tribunal granted a further extension of time to respond until 19 February 2019. The Tribunal declined to grant an extension of time until 23 June 2019 as modern communications technology would enable the applicant to access legal advice from interstate in a timely fashion. Further, the Tribunal considered that no representative had been appointed in connection with this review and that the applicant’s representative in connection with his visa application has an office in Brisbane in addition to Sydney.

10. On 19 February 2019, the applicant requested a further extension of time contending that the second named applicant is ill and he cannot leave her to travel to Sydney to ‘collect further documents.’ On 20 February 2019, the Tribunal granted the applicant a further extension of time to respond to the information, raised with him pursuant to s.359A of the Act, until 12pm on 7 March 2019. The Tribunal also invited the applicant to attend a re-scheduled review hearing by telephone at 12pm on 7 March 2019, in order to accommodate his stated circumstances.

11. The applicant failed to respond to the information raised with him pursuant to s.359A of the Act within the extended period of time to respond. Further, despite numerous attempts by the Tribunal Officer to contact him by telephone on 7 March 2019 to conduct the review hearing, the applicant’s mobile telephone rung but went unanswered. The Tribunal is satisfied that both the latest extension of time grant and the re-scheduled review hearing invitation were properly despatched to the applicant directly. Additionally, the Tribunal notes that short message service (SMS) notifications were delivered to the applicant’s mobile telephone on 28 February 2019 and 6 March 2019, alerting him to the re-scheduled hearing. There is no information contained in the Tribunal’s information management system to suggest these messages were not received by the applicant’s mobile telephone.

12. Following careful consideration, the Tribunal is satisfied that the applicant was afforded a fair opportunity to respond to the information raised with him pursuant to s.359A of the Act, but he chose not to do so. No substantive response to the aforementioned information has been received by the Tribunal at the time of this decision. Further, the Tribunal is also satisfied that the applicant was invited to appear before it at a review hearing in accordance with the statutory requirements, but he failed to do so. Accordingly, the Tribunal may make a decision on the material before it without inviting the applicant to attend another review hearing.

13. Although the applicant has not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow him additional time in which to provide evidence to support his application for review. The Tribunal has taken into account that the applicant has been aware since 27 June 2017 of the visa refusal decision, no medical evidence is before it to indicate that the second named applicant is ill in the manner contended by the applicant, it has previously re-instated the applicant’s review application following his failure to attend the first scheduled review hearing on 12 December 2018, and the applicant has not substantively responded to the information raised with him pursuant to s.359A of the Act by invitation dated 3 January 2019 (and extensions of time granted on 18 January 2019, 5 February 2019 and 20 February 2019).

14. 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 relevant criteria in cl.457.223(4)(a) of Schedule 2 to the Regulations. This matter has therefore been determined on the evidence available to the Tribunal.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

17. 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.

18. The Tribunal notes that the nomination of the applicant for the position of Sales and Marketing Manager (ANZSCO 131112) by Idea Labs Australia Pty Ltd (the nominator) has not been approved (see AAT matter 1709706 where, for the sake of completeness, it is recorded that the applicant was a Director of the nominator). Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.457.223(4)(a) are not met.

19. For the reasons expressed 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.

20. In relation to the second and third named applicants, the Tribunal notes that cl.457.321 requires that secondary visa applicants are members of the family unit of a person (the primary visa applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

21. Given that the applicant has not met the requirements for the grant of a Subclass 457 visa, and is not the holder of a Subclass 457 visa, it follows that the second and third named applicants do not satisfy the requirements of cl.457.321. The Tribunal so finds.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    K. Chapman
    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.