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

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).
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.
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.
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.
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.
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.
The applicant was represented in relation to the review by his registered migration agent.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the secondary visa applicant meets the requirements of cl.457.321.
In undertaking this assessment, the Tribunal is aware that there…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 4626
Decision Date: 28 August 2018

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, Subclass 457, made by Mr. Shuai Ren as a member of the family unit of the primary applicant, Ms. Songjia Yu. The Administrative Appeals Tribunal was required to determine whether Mr. Ren met the requirements of clause 457.321 of the Migration Regulations 1994.

The primary legal issue before the Tribunal was whether Mr. Ren satisfied the criteria for the grant of the visa, specifically clause 457.321, which requires the applicant to be a member of the family unit of a person who, at the time of the decision, holds a Subclass 457 visa and has satisfied the primary criteria. The Tribunal also considered the applicant's obligation to provide necessary information to enable the decision-maker to establish the relevant facts, noting that there is no formal onus of proof in administrative inquiries but that applicants must present their case in sufficient detail.

The Tribunal reasoned that it was not for the Tribunal to fill gaps in the applicant's case. Following a decision on 28 June 2018, which affirmed the refusal of Ms. Yu's visa application, the Tribunal wrote to Mr. Ren on 9 August 2018, inviting him to comment on information that would lead to the affirmation of the decision under review. This information indicated that Ms. Yu was not a holder of a Subclass 457 visa at the time of writing, which was critical to Mr. Ren meeting the requirements of clause 457.321. The invitation requested a response by 23 August 2018. On 22 August 2018, Mr. Ren's migration agent advised that the letter had been forwarded to Mr. Ren, but no response had been received, and the agent could not contact Mr. Ren as his Australian phone number was disconnected.

Consequently, the Tribunal found that the requirements for the standard business sponsor stream had not been met, and no claims were made or evidence provided to satisfy other streams under clause 457.223. The Tribunal affirmed the decision not to grant Mr. Ren a Temporary Business Entry (Class UC) visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE The issue in the present case is whether the secondary visa applicant meets the requirements of cl.457.321. 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. 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. 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. 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. 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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