RATTU (Migration)

[2019] AATA 4022

RATTU (Migration) [2019] AATA 4022 (4 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Puneet Rattu
Ms Bhawna Rattu

CASE NUMBER:  1725427

DIBP REFERENCE(S):  BCC2016/1276323

MEMBER:Jennifer Cripps Watts

DATE:4 September 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 September 2019 at 11:55am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – skills assessment not provided – Tribunal attempted to contact applicant – no response – changes to Subclass 457 visa program – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth), sub-cl 6704(15)
Migration Regulations 1994 (Cth), r 2.75, 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 (the delegate) to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 24 March 2016.

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 visas on 1 September 2017 on the basis that cl.457.223(4)(e) was not met by the applicant because the Minister required, and requested in writing, that the applicant provide a positive skills assessment and one was not provided.

5. The Tribunal is satisfied that the applicants were properly invited to the hearing, by letter on 23 July 2019, and that on 28 August 2019 and 3 September 2019 SMS text reminders were sent to the mobile number provided in the review application. The hearing invitation requested a response and gave details of the type of evidence that it would be useful for the applicant to consider providing on the review and the circumstances in which it was being requested.  No response to the hearing invitation and no additional evidence was received.

6. The hearing was scheduled at 10:30am on Wednesday 4 September 2019.  At 10:31am, a Tribunal hearing officer informed the member that the applicants had not arrived for the scheduled hearing and confirmed, at 11:01am that they had still not arrived or contacted the Tribunal to give a reason for the non-attendance.  The member instructed the Tribunal registry to mark it as a ‘no-show’.

7. The applicants have not informed the Tribunal of any change to their circumstances, for example their contact details or those of the authorised recipient, and communication with the applicants has continued on the basis of the information he last provided, when the review application was made.

8. The applicants were represented in relation to the review by their registered migration agent, Mr Harjinder Chouhan of Australia Education Experts Pty Ltd, Migration Agent Registration Number 0956110.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(da) and (e) of Schedule 2 to the Regulations.

    Skills, qualification and employment background of the applicant

11. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister. In this case the nominated occupation is Cook, Australian and New Zealand Standard Classification of Occupations (ANZSCO) 351411.

    Background

12. On 24 March 2016, the applicant in this matter applied for a Subclass 457 visa on the basis of a nomination by MDS Investment Group Pty Ltd, trading as Spoons Restaurant in Blacktown (the sponsor) that was approved on 6 April 2017.

13. On 21 June 2017 and 17 August 2017, when the Department was assessing the visa application, it was requested that the applicant provide evidence of either the commencement of a Vetassess skills assessment or the successful completion of one.  A total of 98 days was given for a response.  No reply was received.  On 16 October 2017 the applicants were notified in writing, by the delegate, that the applications had been refused because the applicant did not meet cl.457.223(4)(e) and the secondary applicant did not meet the secondary criteria.

    Changes to the Subclass 457 visa program and Saving Provisions

14. On 18 March 2018, the Department of Home Affairs introduced a new Temporary Skill Shortage (TSS) visa (Subclass 482) to replace the Subclass 457 visa.  From 18 March 2018 an applicant for a Subclass 457 visa could not request a skills assessment from Trades Recognition Australia’s (TRA) Skills Assessment Program.  This change applies to the applicant in the current matter on review.  It is the Tribunal’s view, in the circumstances described below, that the nomination has not ceased because the transitional arrangements in the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 state that the purpose of subclause 6704(15) is to ensure that a nomination linked to a Subclass 457 visa application will not cease while the Tribunal carries out the review of a decision to refuse the visa.

15. The cessation of the approval for a Subclass 457 visa is provided for in r.2.75 of the Regulations.  Under r.2.75, approval of a nomination ceases in a number of different circumstances.  Relevant to this matter, the applicant’s visa was refused and the nomination ceased 12 months after the day the nomination was approved, on 6 April 2018.

16. However, r. 2.75(2)(b), which provides for cessation 12 months after nomination approval, does not apply to a nomination made before 18 March 2018 if the person identified in the nomination applied for a 457 visa before 18 March 2018 and they applied to the Tribunal for a review of a decision to refuse to grant that visa within 12 months after the day on which the nomination was approved.  The applicant applied for Tribunal review on 18 October 2017, which is within the relevant 12 month period.

17. When the Tribunal hearing invitation was sent to the applicant on 23 July 2019, the changes and consequences of the cessation of the 457 program were briefly explained and they were asked, as they can no longer apply for a relevant skills assessment, to provide other information such as references from previous employers, licences or trade registrations, or an assessment that was obtained but not previously provided to the Department, that show they have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation.

18. At the time of the delegate’s decision, the applicant had not provided a Vetassess skills assessment as he was required to do by the Minister.  The applicant did not provide any additional evidence to the Tribunal, even though he was put on notice of the reason why he should in the hearing invitation.  The applicants did not attend the Tribunal hearing and did not give a reason for the non-attendance. 

19. The applicant must possess and demonstrate that he has the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation to satisfy cl.457.223(4)(da) and cl.457.223(e).

20. On the evidence, and for the reasons given, including that the applicant did not provide a skills assessment with his visa application and did not provide any additional evidence in support of a claim that he meets the requirements in cl.457.223(4)(da) and cl.457.223(4)(e), the applicant does not satisfy the requirements of cl.457.223(4)(da) and cl.457.223(4)(e).

21. 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.

    Secondary applicant

22. As the Tribunal has affirmed the decision to refuse the primary applicant’s visa, the visa of the secondary applicant must also be affirmed because she does not meet the secondary criteria in cl.457.321.

    DECISION

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

    Jennifer Cripps Watts
    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.