Ren (Migration)

[2018] AATA 4626

Ren (Migration) [2018] AATA 4626 (28 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shuai Ren

CASE NUMBER:  1610973

DIBP REFERENCE(S):  BCC2015/2160836

MEMBER:Sheridan Lee

DATE:28 August 2018

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 August 2018 at 11:06am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – member of the family unit of the primary visa applicant – refusal of primary visa applicant’s Subclass 457 visa application was affirmed –failed to provide the requested information within the prescribed period – lost the right to appear before the Tribunal – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 363, 379
Migration Regulations 1994, Schedule 2, cls 457.223, 457.321

CASES
Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264

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 applicant applied for the visa on 28 July 2015 on the basis that he is a member of the family unit of Ms Songjia Yu (the primary visa applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

3. At the time the visa application was lodged, Class UC contained Subclass 457. The criteria for a Subclass 457 visa were set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa, need satisfy only the secondary criteria.

4. Specific claims were made by the primary visa applicant against cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor.

5. The delegate refused to grant the visas on 13 July 2016. As a consequence of the visa being refused to the primary visa applicant, in the present case the visa was refused on the basis that cl.457.321 was not met. Clause 457.321 requires that at the time of decision the applicant is the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

6. The applicant and Highland Pallets Pty Ltd (on behalf of the primary visa applicant) separately applied to the Tribunal for merits review of that decision.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the secondary visa applicant meets the requirements of cl.457.321.

10. In undertaking this assessment, the Tribunal is aware that there is no formal onus of proof associated with administrative inquiries and decision-making. However, the Courts have held that it is for an applicant seeking a particular outcome to put forward material in as much detail as is necessary to enable a decision-maker to establish the relevant facts. It is not for the Tribunal to fill any gap or make out the applicant’s case.[1]

    [1] Minister for Immigration and Border Protection v Jayshree Enterprises Pty Ltd [2017] FCA 264, 20-30.

11. On 9 August 2018, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information, that, subject to his comment or response, if relied upon, would be the reason, or part of the reason for the Tribunal to affirm the decision under review. The invitation was sent to the applicant via his registered migration agent. The particulars of the information were:

    ·on 28 July 2015, the applicant applied for a Subclass 457 visa on the basis that he is a member of the family unit of Ms Songjia Yu (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa (cl.457.321 of Schedule 2 of the Migration Regulations 1994).

    ·on 13 July 2016, a delegate of the Minister for Immigration refused the visa application. The applicant and Highland Pallets Pty Ltd (on behalf of the primary visa applicant) separately applied to the Tribunal for merits review of that decision.

    ·on 28 June 2018, the Tribunal affirmed the decision not to grant Ms Yu a Temporary Business Entry (Class UC) visa.

    ·Departmental records indicated that Ms Yu was not the holder of a Subclass 457 visa at the time of writing.

12. The applicant was advised that the information is relevant to the review because cl.457.321 requires that at the time of decision he be the member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. The consequence of the Tribunal relying on the information is that it would find he does not meet the criteria for the grant of the visa.

13. The letter invited comments or a response by 23 August 2018, noting that an extension of time to respond could be requested prior to that date.

14. On 22 August 2018, the Tribunal received correspondence from the applicant’s registered migration agent, Ms Betty Zhang. Ms Zhang outlined that:

    I have forwarded the letter "INVITATION TO COMMENT ON OR RESPOND TO INFORMATION" to the above applicant Mr Shuai Ren on 9 Aug 2018.

    However, I have not received any response for the client so far, and I don't have the access to contact the client, as his Australian phone number has been disconnected.

15. Where a document is to be given to a person, the Act in many instances requires that the notice be given to the person by one of the methods specified in ss.379A. One of the specified methods is transmitting the document by e-mail to the last e-mail address provided to the Tribunal by the recipient in connection with the review.[2]

    [2] ss.379A(5).

16. Section 379G of the Act provides for a person to authorise another person to act as an ‘authorised recipient’. If the applicant has given the Tribunal written notice of the name and address of an authorised recipient, who has been authorised by the applicant to receive documents in connection with the review, the Tribunal must give the invitation to the authorised recipient, unless and until the applicant withdraws or varies the notice given.

17. In this instance, the letter was sent via email to the email address provided to the Tribunal in connection with the review for the applicant’s registered migration agent and authorised recipient. The applicant did not notify the Tribunal of any change in representation or withdraw authority for Ms Zhang to act as his representative or receive documents. As such, the Tribunal is satisfied that the document was provided to the applicant in accordance with the requirements of the Act.

18. The applicant did not make contact with his representative or make any submissions to the Tribunal within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from the applicant at the time of decision.

19. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[3] Accordingly, as the applicant failed to give the information requested within the prescribed period, he has lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

    [3] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

20. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

21. As the decision to refuse the primary visa applicant’s Subclass 457 visa application was affirmed by the Tribunal on 28 June 2018, and the applicant has not submitted any evidence to suggest that he is currently the member of a family unit of a Subclass 457 visa holder, the Tribunal must find that he does not meet the requirements of cl.457.321.

22. 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

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

    Sheridan Lee
    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.