Restrepo Penilla (Migration)

[2019] AATA 4830

Restrepo Penilla (Migration) [2019] AATA 4830 (31 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Carlos Enrique Restrepo Penilla
Ms Luisa Fernanda Lopez Avellaneda

CASE NUMBER:  1705002

DIBP REFERENCE(S):  BCC2015/427279

MEMBER:George Hallwood

DATE:31 October 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 31 October 2019 at 12:38pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – standard business sponsor stream – subject of approved nomination – employer’s position nomination refused – refusal affirmed by Tribunal – no response to Tribunal’s s 359A letter – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C, 360(3), 363A

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

CASE
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 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 9 February 2015.

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 28 February 2017 on the basis that cl.457.223(4)(a) was not met because the primary applicant is not the subject of an approved nomination.

5. The applicants were represented in relation to the review by their registered migration agent.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

2. LC Ninos Pty Ltd ATF LC Children Family Trust (LC Ninos) lodged an application to nominate these applicants on 9 February 2015. The delegate decided not to approve the nomination on the basis that LC Ninos did not satisfy r.2.72(10)(f) because the delegate did not consider the position associated with the nominated occupation to be genuine.

3. On 9 October 2019 the Tribunal affirmed the decision not to approve the nomination as there was no evidence provided to the Tribunal to demonstrate that the position associated with the nominated occupation is genuine.

4. Section 359A of the Act requires, in the conduct of a review, that the applicant be given an opportunity to comment or respond to certain information which we consider would, subject to the applicant comments or response.

5. In accordance with s359A, on 11 October 2019 the applicants were informed in writing of the adverse information that they were not the subject of an approved nomination by LC Ninos.  The applicants were given an opportunity to respond by 25 October 2019 or to request an extension of time to respond. The Tribunal’s letter to the applicants advised them that they would lose their entitlement to appear before the Tribunal to give evidence or provide arguments if they did not respond by the nominated date. The letter also stated that the Tribunal may make a decision on the review without taking any further action to obtain the applicants views on the information.

6. No response or request has been received by the Tribunal.

7. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicants are 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. In the absence of any response including a request for an extension of time the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

Requirement for an approved nomination

1. 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.

2. The Tribunal finds that the primary subclass 457 visa applicant is not the subject of an approved nomination of an occupation relating to the applicant.

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

4. The secondary visa applicant applied for the visa on the basis of being a member of the family unit of the first named visa applicant. As the first named visa applicant does not meet the requirements for the grant of the visa, it follows that the Tribunal must also affirm the decision in respect of the secondary applicant.

CONCLUDING PARAGRAPH

1. 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

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

George Hallwood
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.