Shamic Sheetmetal Pty Ltd (Migration)

[2019] AATA 2492

Shamic Sheetmetal Pty Ltd (Migration) [2019] AATA 2492 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Shamic Sheetmetal Pty Ltd

VISA APPLICANTS:  Mr Macgill Vianney VILJOEN
Mrs Shereen Judith Viljoen
Miss Bethany Viljoen
Miss Meadow Viljoen

CASE NUMBER:  1711155

DIBP REFERENCE(S):  BCC2016/3503970

MEMBER:Antonio Dronjic

DATE:28 May 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 28 May 2019 at 4:15pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– standard business sponsor stream– not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A, 140GB, 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 Citizenship v Li [2013] HCA 18
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1

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 21 October 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 4 May 2017 on the basis that cl.457.223 (4)(e) was not met as the primary visa applicant has failed to demonstrate that he has the skills necessary to perform the nominated occupation in the manner specified by the Minister (By providing evidence of commencing the relevant skills assessment).

5. The applicant applied to the Tribunal on 25 May 2017, and provided a copy of the primary decision record with the application. The applicant was represented by a migration agent.

6. On 15 March 2019, the Tribunal wrote to the applicant inviting comments on or response to the information under section 359A. The s. 359A letter sought the applicant’s comment on or response to the following information:

   It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you have an approved nomination under s.140GB of the Act for Mr Macgill Vianney Viljoen.

   A review of your file and Departmental records suggests that you do not have an approved nomination as the previously approved nomination in respect of Mr Macgill Vianney Viljoen expired on 14 October 2017.

   The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

   7.This information is relevant to the review because it suggests that you do not have an approved nomination and that a new application for approval cannot be made. If we rely on this information in making our decision we may find that you do not have an approved nomination. This would be the reason, or a part of the reason, for affirming the decision under review.

   You are invited to give comments on or respond to the above information in writing…

7. The invitation was sent to the applicant’s representatives’ address provided in connection with the review and advised that, if the comments on or response to the information was not provided in writing by 29 March 2019, and no extension of time has been sought or granted, the Tribunal may make a decision on the review without taking further steps to obtain the comments on or response to the information contained in the Tribunal letter of 15 March 2019.

8. The review applicant has not provided comments on or response to the information contained in the Tribunal letter.

9. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide comments on or response to the information contained in the Tribunal letter of 15 March 2019.

10. 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. It has also had regard to the decision in Minister for Immigration and Citizenship v Li[3] regarding the reasonableness of any request for an adjournment, 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)

11. The Tribunal considered whether, in the circumstances of this case, the applicant’s comments on or response to the information contained in the Tribunal’s s359A letter are likely to be forthcoming, whether the applicant had a fair opportunity to provide comments on or response to the information and the significance of the information to the applicant.

12. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting the applicant to provide comments and/or or response to the Tribunal letter of 15 March 2019. The Tribunal notes that the applicant had the benefit of representation from a registered migration agent to assist with the review application. Yet, neither the applicant nor its representative provided comments and/or or response within the prescribed periods set for this purpose.

13. The Tribunal has had regard to the fact that the visa applications were refused by the Department on 4 May 2017 because the first named visa applicant was unable to meet the cl.457.223 (4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The applicant submitted a copy of the primary decision record with the review application. The applicant was aware of the reasons for the delegate’s’ decision for more than two years.

14. The Tribunal note that, if the visa applicants are not granted a temporary work visa, they may be required to depart Australia. There is nothing to prevent the visa applicants from re-applying for a temporary visa once the first named applicant finds the new employer willing to sponsor and nominate the applicant for the position within their business.

15. In these circumstances, and for the reasons set out in this decision record, the Tribunal considers that the applicant has had sufficient time in which to address the central issues arising in the application for review and a fair opportunity to provide comments on or response to information contained in the Tribunal letter. Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further. 

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

17. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the first named visa applicant by a standard business sponsor that has not ceased.

18. Based on the evidence before it, the Tribunal finds that the first named visa applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named visa applicant that has not ceased. The Tribunal finds that the first named visa applicant does not satisfy cl.457.223(4)(a).

19. As the first named visa applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second, third and fourth named applicants do 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.

20. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Antonio Dronjic
    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.