SARAKARN (Migration)

[2018] AATA 1116

SARAKARN (Migration) [2018] AATA 1116 (23 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phichet SARAKARN

CASE NUMBER:  1621405

DIBP REFERENCE(S):  BCC2016/2370515

MEMBER:Mr S Norman

DATE:23 March 2018

PLACE OF DECISION:  Sydney

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

Statement made on 23 March 2018 at 1:22pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Not subject of an approved nomination – Insufficient information

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

CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18

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).

2. The visa applicant applied for the visa on 15 July 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 visa on 8 December 2016 on the basis that cl.457.223(4)(a) had not been met.

5. The applicant was represented in relation to the review by her 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

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

   Requirement for an approved nomination

8. 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.

9. The Tribunal understands there is one subclass under the Temporary Business entry (Class UC), being subclass 457 – temporary Work (Skilled) visa. The prescribed criteria for approval of this visa is set out in the applicable time of application criteria (457.21); and the criteria applicable at the time of decision (457.22). Clause 457.223(1), states that the applicant must meet the requirements of subclause 457.223(2) or (4) (see attachment).

10. As the applicant made no claims or evidence against subclause (2), the Tribunal is not satisfied the applicant has satisfied subclause (2). The only subclause against which claims are evidence had been lodged is subclause 457.223 – “Standard business sponsorship”. Therefore, the Tribunal considered the applicant’s claims against subclause 457.223(4).

11. On 24 October 2016, the Department refused the nomination application lodged by the applicant’s prospective employer, Suksabai Thai P/L. On 31 October 2016, the primary applicant was given an opportunity to either provide comments on their intentions regarding the visa application; withdraw the application in writing; or provide comment or any other information considered relevant. The applicant provided no further evidence or submissions to the Department prior to the delegate’s decision.

12. The delegate concluded that as the primary applicant was not the subject of an approved nomination, they did not satisfy subclause 457.223(4)(a). Therefore the delegate was not satisfied the applicant met the prescribed criteria for the grant of a Temporary Business Entry (Class UC) visa – subclass 457 Temporary Work (Skilled) visa.

13. The delegate then went on to assess the applicant against the secondary criteria for the subclass 457 Visa. One of the secondary criteria for the subclass 457 Visa is that the applicant must be a member of the family unit of a person who has satisfied the primary criteria and holds a subclass 457 Visa. Since no secondary applicants were included in the primary applicant’s application, and the applicant is not a member of the family unit of the person who has already been granted a subclass 457 Visa, the delegate was not satisfied the applicant met this criteria. 

14. For the same reasons as set out by the delegate, the Tribunal was not satisfied the applicant had met the criteria for the grant of the visa. By s.359A letter dated 28 February 2018, the Tribunal invited the applicant to comment on or respond to information. The particulars of the information related to evidence before the Tribunal, that the nominator’s application for the nominated position had not been approved. The Tribunal invited the applicant to respond in writing by 14 March 2018. No response from the applicant had been received.

15. Section 360 of the Act states inter alia the “Tribunal must invite the applicant to appear before the Tribunal to give evidence and present arguments”. However, section 359C of the Act provides that if a person fails to respond to a s.359A letter, the “Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information”. In the circumstances of this case, given no response was received to the Tribunal’s s.359A letter, and given no material evidence was otherwise lodged with the Tribunal, and given the applicant was made aware of the deficiencies in the visa application at the time of the delegate’s decision, I have decided to make a decision on the review without taking any further action to obtain the applicant’s views on the information.

16. Further, the Tribunal has given consideration to whether it should adjourn the review under subsection 363(1)(b) of the Act in order to allow the applicant additional time in which to provide further evidence to support the review application. In doing so, the Tribunal has taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs[1] and Manna v Minister for Immigration and Citizenship[2] where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes. I have also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment (something that was not requested in this case), and the Full Federal Court decision in Minister for Immigration and Border Protection v Singh[4] which considered this issue, as well as the more recent decision in Kaur v Minister for Immigration and Border Protection[5] where analogous issues were discussed.

    [1] [2002] FCA 617

    [2] [2012] FMCA 28

    [3] [2013] HCA 18 (8 May 2013)

    [4] [2014] FCAFC 1 (4 February 2014)

    [5] [2014] FCA 915 (28 August 2014)

17. The Tribunal considered whether, in the circumstances of this case, the information that the applicant meets the requirements in subclause 457.223(4)(a) is likely to be forthcoming and whether the applicant has had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant. The Tribunal has also had regard to the fact that the visa application was refused by the Department on 8 December 2016, and to the above discussion and reasons in paragraph [15]. The Tribunal also notes the applicant has been aware for around 15 months of the delegate’s reasons for refusing the visa application.

18. In these circumstances, and based on the evidence set out herein, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether the applicant meets the requirements of subclause 457.223(4)(a).  The Tribunal has decided not to delay its decision any further. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that they meet the requirements of subclause 457.223(4)(a).  

19. Based on the information before it, the Tribunal is not satisfied the applicant meets the requirements of subclause 457.223(4)(a)(i).  The applicant has not sought to satisfy the criteria in Temporary Residence Transition Nomination stream, and as such has not met the requirements in subclause 457.223(2). Accordingly, the Tribunal has decided to affirm the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.   

    DECISION

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

    Mr S Norman
    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.