Rinzin (Migration)

[2020] AATA 2509

Rinzin (Migration) [2020] AATA 2509 (27 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chimi Rinzin
Mrs Tshering Peldon

CASE NUMBER:  1727839

DIBP REFERENCE(S):  BCC2016/3048066

MEMBER:Karen Synon

DATE:27 March 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 27 March 2020 at 1:06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved sponsor – applicant was not a subject of an approved nomination –failed to provide requested response within the prescribed period – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359,360, 363
Migration Regulations 1994, 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 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 14 September 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 visas on 25 October 2017 on the basis that cl.457.223(4)(a) was not met because the primary review applicant (‘the applicant’) was not the subject of an approved nomination.

5. The applicant applied for review of the primary decision on 10 November 2017 and provided a copy of the department’s decision.  When lodging this, the applicant provided a number of documents not relevant to the issue on review.

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

7. On 27 February 2020 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to provide comments or respond, in writing, to information it considered would the reason or part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating that the review of a decision of the department not to approve a nomination in respect of the applicant made by Paramkul Pty Ltd, his proposed nominator, was affirmed by the Tribunal on 25 February 2020.  Further, there was no information contained on the Department’s file records that the applicant or the secondary applicant is the subject of an approved nomination by a standard business sponsor.  The applicant was advised that this information is relevant to the review because cl.457.223(4)(a) requires that, at the time of decision, an applicant must be the subject of an approved nomination by a standard business sponsor.  Comments or a response in writing were invited by 12 March 2020.

8. The s.359A invitation was sent to the applicants’ authorised recipient and representative via email on 27 February 2020.  In this letter the applicants were advised that if a response or comments was not provided in writing by 12 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. On 12 March 2020 a request for an extension of time was requested so that the applicant could “contact my employer and get the required documents in support of my case”.

10. In response on 12 March 2020, the Tribunal granted this request and advised the applicants that an extension of 14 days had been granted in which to provide comments or a response with a new due date of 26 March 2020.  The applicants were again advised that if a response or comments was not provided in writing by 26 March 2020, the Tribunal may make a decision on the review without taking further steps to obtain the comments or response and the applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

11. The applicants did not provide comments or a response within the prescribed extended period.

12. In these circumstances, s.359C applies and pursuant to s.360(3) the applicants are 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 to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal is satisfied that it has communicated with the applicants via their authorised representative by email at his advised email address in a prescribed manner. The Tribunal has accordingly decided to proceed to decision without taking further steps to obtain the comments or response.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

15. 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.

16. As detailed to the applicant in accordance with s.359A, the review of a decision of the department not to approve a nomination in respect of him made by Paramkul Pty Ltd, his proposed nominator, was affirmed by the Tribunal on 25 February 2020 and further there was no information contained on the Department’s files recording that he or the secondary review applicant is the subject of an approved nomination by a standard business sponsor.

17. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

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

19. 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.

20. As the applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the secondary applicant also does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

    DECISION

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

    Karen Synon
    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.