Santos Da Cruz (Migration)

[2021] AATA 1743

Santos Da Cruz (Migration) [2021] AATA 1743 (1 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Marcos Luriel Santos Da Cruz
Mrs Giulia Leme Galbiatti
Miss Marcella Galbiatti Cruz

CASE NUMBER:  1830690

HOME AFFAIRS REFERENCE(S):          BCC2018/938722

MEMBER:Alan McMurran

DATE:1 June 2021

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2021 at 2:23pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Café or Restaurant Manager – subject of an approved nomination – no response to s.359A invitation – no entitlement to a hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

The application

1. This is an application for review of a decision of a delegate of the Minister for Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 27 February 2018. The applicant is a 29 year-old citizen of Brazil (“primary applicant”). The second and third-named applicants are respectively the partner and daughter of the visa applicant (“secondary applicants”). The applications by the secondary applicants depend upon a successful outcome by the primary applicant.

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 (Cth) (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.

4. 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.

5. No claims have been made in respect of the other alternative streams in cl 457.223.

   Department decision

6. The delegate refused to grant the visas on 10 October 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

7. On 20 September 2018, the applicant applied to the Tribunal for review. The applicant provided a copy of the Department decision with the application.

   Hearing invitation

8. On 5 May 2021, the Tribunal sent an invitation to the applicant to attend a telephone hearing at 12.30pm (WA time) with a Member sitting in Sydney.

9. On 6 May 2021, the applicant sent a hearing response to the Tribunal. The response indicated that only the visa applicant would appear by telephone. No other information was included with the response.

10. On 12 May 2021, the application was constituted to a Tribunal Member for the hearing.

    s.359A invitation

11. On 13 May 2021, the Tribunal sent a letter under s.359A of the Act, inviting the applicant to comment or respond. The letter provided particulars that the nomination to which the nominated position relates was refused by the Department, and that the nomination refusal was subsequently affirmed by the Tribunal, and that absent any comments or response, that would be the reason or a part of the reason, for affirming the visa decision under review.

12. The Tribunal letter required a response from or on behalf of the applicant by 27 May 2021, failing which the applicant would lose any entitlement to appear at a hearing to give evidence and present arguments.

13. The applicant did not respond to the Tribunal invitation as requested, or at all.

    Section 360 and right to appear

14. S.360 (1) of the Act provides that the Tribunal must invite an applicant to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

15. S. 360 (2) (a) provides that subsection (1) does not apply if the Tribunal considers it should decide the review in the applicant’s favour, and on the basis of the material before it.

16. S. 360(2) (c) provides that subsection (1) does not apply if the applicant is invited to give information in writing to the Tribunal under s.359 of the Act but does not give the information before the time for giving it has passed.

17. On 27 May 2021, the last date for the applicant to respond to the Tribunal’s invitation passed without response.

18. On 31 May 2021, the Tribunal cancelled the applicant’s hearing date as the applicant had lost the right to appear.[1]

    [1] S.360(3) of the Act    

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

21. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a), that the applicant is the subject of a nomination of an occupation which has been approved under section 140GB of the Act.

    Requirement for an approved nomination

22. 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.

23. On 6 August 2018, the Department decided to refuse the related nomination application [2] by La Dicha Pty Ltd (“the nominator”) for the nominated occupation of Café or Restaurant Manager (ANZSCO 141111).

    [2] BCC2018/893849

24. On 23 August 2018, the nominator sought review in the Tribunal.

25. On 1 April 2021, the Tribunal affirmed the decision not to approve the nomination. The Tribunal decision on the nomination is not the subject of any further review or case re-opening (requested by the representative) or appeal and the Tribunal’s jurisdiction in respect of the nomination review is complete.

26. The Tribunal has had regard to the above facts and finds that the visa applicant does not have an approved nomination for the specified occupation and position.

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

    Secondary applicants

28. The secondary applicants are members of the family unit of the primary review applicant, as required by r.457.321. The regulation further requires however that the primary review applicant (the applicant) is the holder of a Subclass 457 visa.

29. As the application for the visa has been refused, and the primary review applicant is not the holder of a Subclass 457 visa, the secondary applicants cannot meet the criterion and r.457.321 is not met.

    Summary

30. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met.

31. 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

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

    Alan McMurran
    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.