Shah (Migration)

[2017] AATA 163

Shah (Migration) [2017] AATA 163 (31 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jashan Tusharbhai Shah

CASE NUMBER:  1511724

DIBP REFERENCE(S):  BCC2015/703881

MEMBER:Louie Hawas

DATE:31 January 2017

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 31 January 2017 at 3:26pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – cl 457.223(4) – Sponsor nomination refused – Customer service manager – Further nomination request – Request for delay of decision pending new nomination

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359A
Migration Regulation 1994, Schedule 2 cl 457.223, r 2.72

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 4 March 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 those 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 5 August 2015 on the basis that cl.457.223(4)(a) was not met. The nomination application lodged by A1 Jetport Parking Pty Ltd ATF A1 Jetport Parking Unit Trust (A1 Jetport Parking) nominating the applicant as a customer service manager was refused by the department on 30 June 2015.

5. The applicant appeared before the Tribunal on 6 September 2016 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Request to postpone decision

8. On 4 March 2015, A1 Jetport Parking applied to nominate the applicant under s.140GB of the Act and r.2.72 of the Migration Regulations 1994. The nominated occupation was customer service manager (ANZSCO 149212). On 20 March 2015, the delegate decided not to approve the nomination because the applicant did not satisfy r. 2.72(10)(f). A1 Jetport Parking applied to the Tribunal to review the delegate’s decision. On 31 October 2016, the Tribunal decided to affirm the delegate’s decision and published its written reasons (see written reasons in case No.1504839).

9. By letter dated 2 November 2016, the Tribunal asked the applicant under s 359A of the Act to comment on its decision to affirm that of the delegate to refuse A1 Jetport Parking’s nomination application. In the letter, the Tribunal notified the applicant that its earlier decision (the information), subject to the applicant’s comment, would be a reason, or part of the reason, for affirming the decision under review. The Tribunal sought a response by 16 November 2016, and stated that if the applicant did not respond, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views.

10. The applicant responded out of time (without first having sought nor been granted an extension) by way of an email from his representative to the Tribunal on 21 November 2016. By that email, the applicant did not comment on the information but notified that he was in the process of applying for another nomination. The applicant asked ‘for an extension of visa application by Migration and refugee Division of the AAT……… by 15/12/2016’. The applicant also asked the Tribunal to withhold a decision on this review until after the outcome of the proposed new nomination application. The applicant stated that he would inform the Tribunal of the details of the new nomination application once it had been made. Subsequently, the applicant did not inform the Tribunal of the details of any new nomination.

11. By email to the applicant’s representative on 23 January 2017, the Tribunal notified the defendant that whatever the substance of his request for an extension of visa application to 15 December 2016, the Tribunal did not decide this review before that date so that request was now redundant. The Tribunal stated that it was not required, and in this review not prepared, to withhold its decision in this review until a new nomination application had been lodged and a decision was made on any application. The Tribunal asked the applicant to provide any response by 27 January 2017, and that subject to any response, the Tribunal would decide this review in the week commencing 30 January 2017.

12. The applicant’s representative responded by email on 23 January 2017. He stated that a fresh nomination application in relation to the applicant was yet to be lodged and he asked for more time to lodge the nomination application.  The Tribunal understood that further request as one to postpone a decision until a fresh nomination application had been lodged, and then to postpone a decision until any fresh nomination application had been decided.

13. Whatever the substance of the applicant’s request for an extension ‘of visa application………by 15/12/2016’, the date has now passed and the Tribunal did not make any decision or take any step beforehand. So that request is no longer relevant to this decision.

14. That leaves the applicant’s request to delay deciding this review until a new nomination application had been made and decided. The Tribunal decided A1 Jetport Parking’s review on 31 October 2016. The applicant has now had a reasonable opportunity to make any fresh application(s), to inform the Tribunal of them, and explain why they were material to this review. According to his representative’s emails to the Tribunal, a fresh nomination application (or any other application) in relation to the applicant is yet to be made. In a review such as this one, the law does not require the Tribunal to postpone its decision pending the outcome of a fresh nomination application to the department. The Tribunal is not otherwise required to delay its decision indefinitely.[1]  In the circumstances set out earlier in this paragraph, the Tribunal is not prepared to postpone its decision in this review to await a fresh nomination application to be made to the department, and then await the outcome of that application. The Tribunal will proceed to decide this review.    

    [1] See Huo v Minister for Immigration and Multicultural Affairs [2001] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28.

    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. Based on the evidence before it, including the oral evidence given by the applicant at the hearing, the Tribunal is not satisfied that the applicant is, at the time of this decision, the subject of an approved nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant that has not ceased. The Tribunal finds that the applicant does not satisfy cl. 457.223(4)(a).

17. For those reasons, 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

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

    L. Hawas
    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.