Reddipally (Migration)

[2018] AATA 3117

Reddipally (Migration) [2018] AATA 3117 (19 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vamshi Nandan REDDIPALLY

CASE NUMBER:  1709682

DIBP REFERENCE(S):  BCC2016/1134711

MEMBER:Ian Berry

DATE:19 July 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 19 July 2018 at 9:54am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Standard business sponsor ceased – Applicant not subject of an approved nomination – Practice and procedure – Applicant did not respond to hearing invitation – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359, 359C, 360, 363A
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

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).

2. The visa applicant applied for the visa on 15 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 visa on 18 April 2017 on the basis that cl.457.223(4)(a) was not met because the applicant does not have an approved nomination of an occupation in relation to the applicant under section 140GB of the Act.

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 the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a), that is he have an approved nomination of an occupation in relation to him.

   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 16 March 2018, the Tribunal wrote to the review applicant pursuant to section 359(1). This letter requested from the review applicant information that demonstrates he meets all the requirements of the criteria in clause 457 and in particular clause 457.223(4). He was requested to respond to the invitation by 3 April 2018, and he did not do so.

9. On 3 May 2018, the Tribunal wrote to the review applicant pursuant to Section 359(2) of the Act, inviting the review applicant to provide Information about his sponsor, and whether he was sponsored and if the sponsorship was approved or at an end.

10. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 17 May 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The review applicant has not provided the information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

12. The Tribunal had before it the department's file in relation to the review applicant's application.  This file did not have any submissions or comments in relation to this applicant.

13. The Tribunal file does not have any information, evidence or submissions supplied by the review applicant in relation to his sponsorship status.  The only history in relation to this applicant is the decision by the delegate.

14. This information states that on 19 September 2016 the Department refused the nomination application lodged by the applicant's prospective employer.  On that same day, the nominator was sent a letter from Department inviting a response.

15. On 18 October 2016, a further nomination application was lodged by the same nominator in relation to the applicant, but was refused by the Department on 7 February 2017.

16. On 7 February 2017, the applicant nominator was again given the opportunity to make a comment or respond to the refusal decision. The nominator applicant did not respond.

17. Departmental records indicate that the review applicant does not have a sponsor.  There is not in place an approved nomination application in relation to the review applicant.

18. The Tribunal has searched Department records and ascertained, in respect of the review applicant, there is not an approved nomination in relation to him.

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

20. 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

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

    Ian Berry
    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.