RESHAMVALA (Migration)

[2019] AATA 2235

RESHAMVALA (Migration) [2019] AATA 2235 (29 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdevali Moiz Reshamvala

CASE NUMBER:  1620431

DIBP REFERENCE(S):  BCC2016/2516141

MEMBER:C. Packer

DATE:29 May 2019

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 29 May 2019 at 6:00pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– standard business sponsor stream– not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363A
Migration Regulations 1994, r 2.72, Schedule 2, cl 457.223

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). The visa applicant applied for the visa on 29 July 2016.

2. 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.

3. The delegate refused to grant the visa on 28 November 2016 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by his prospective employer Think Solar Pty Ltd.

4. On 13 May 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the comments or response was not provided in writing by 27 May 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has not provided any comments or response within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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 his views on the information.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) that requires there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. However, as the Tribunal’s letter to the applicant indicated, on 7 May 2019 the Tribunal affirmed the decision not to approve the business nomination of Think Solar Pty Ltd. Without an approved business nomination, he cannot meet an essential criterion for the grant of the visa.

10. As well, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r.2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa. It is a requirement for the grant of the visa that he is the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of his file shows that he is not the subject of an approved nomination by a standard business sponsor, and a new application for approval of a nomination in support of his Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

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

12. 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

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

    C. Packer
    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.