Simple (Migration)

[2019] AATA 4629

Simple (Migration) [2019] AATA 4629 (13 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Simple Simple
Mr Sunil Popli
Master Kayaan Popli

CASE NUMBER:  1515067

DIBP REFERENCE(S):  BCC2015/1596083

MEMBER:Sheridan Lee

DATE:13 September 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 13 September 2019 at 9:20am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – nomination refused – no further information provided – no request for extension – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

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. Mrs Simple and her family applied for the visas on 3 June 2015. 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit who are applicants for the visa, need satisfy only the secondary criteria.

3. 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 20 October 2015 on the basis that cl.457.223(4)(a) was not met because no nomination of an occupation in relation to the primary applicant (the applicant) had been approved.

5. The Tribunal received a review application from the applicant on 6 November 2015. It was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the departmental and Tribunal files.

6. Mrs Simple appeared before the Tribunal on 9 April 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. On 31 August 2015, the applicant was advised by the Department of Home Affair that her prospective employer, Geetz Pty Ltd, did not have an approved nomination in place. On 20 October 2015, her Subclass 457 visa application was refused on the basis that she did not satisfy the requirements in cl.457.223(4)(a) of the Regulations.

10. On 9 April 2019, the applicant appeared before the Tribunal. At the hearing, the applicant advised that she had secured a new standard business sponsor willing to nominate her for the occupation of Cook. Departmental records confirmed that KG Enterprises (Aust) Pty Ltd applied to nominate the applicant for the occupation of Cook on 1 March 2018.

11. On 31 July 2018, the application for approval of the nominated position by KG Enterprises (Aust) was refused by the Department. KG Enterprises applied to the Tribunal for merits review of that decision. The Tribunal felt it was appropriate to consider the nomination application prior to making a decision in the current matter.

12. On 27 August 2019, the Tribunal wrote to the applicant, pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The letter provided the above history and further advised that:

    ·on 19 August 2019, the Tribunal affirmed the decision to refuse the nomination application made by KG Enterprise (Aust).

    ·Departmental records indicated that the applicant was not the subject of an approved or pending nomination application for a Subclass 457 visa.

13. The letter outlined that the information was relevant to the review because cl.457.223(4)(a) requires that at the time of decision the applicant must be the subject of an approved nomination by a standard business sponsor. It was also explained, that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of a subclass 457 visa.

14. The letter invited comments or a response by 10 September 2019, noting that an extension of time to respond could be requested prior to that date.

15. The applicant did not make any submissions within the prescribed period. In addition, the applicant did not request an extension of time and there has been no further communication from either the applicant or her representative at the time of the Tribunal’s decision.

16. The Courts have confirmed that where an applicant fails to provide the requested information within the prescribed period, s.363A of the Act precludes the Tribunal from offering the applicant a hearing.[1] Accordingly, as the applicant failed to give the information requested within the prescribed period, she has lost the right to appear before the Tribunal to give evidence and present arguments relating to the adverse information.

    [1] See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403, 32-39; Yang v Minister for Immigration and Citizenship [2010] FMCA 890, 40; Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40.

17. In these circumstances, subsection 359C(2) of the Act applies and the Tribunal has decided to proceed to decision without taking any further action to obtain the information.

18. As the decision to refuse the nominating employer’s application was affirmed by the Tribunal on 19 August 2019, and departmental records indicate that the applicant is not presently the subject of an approved nomination by a standard business sponsor, the Tribunal finds that the applicant does not meet the requirement in s.457.223(4)(a)(i).

19. Consequently, the requirements of cl.457.223(4)(a) are not met.

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

21. As the Tribunal found that the applicant does not satisfy the primary criteria it must find that the second and third applicants do not satisfy the secondary criteria for a grant of a visa, on the basis that they are not a member of a family unit of a person who holds a Subclass 457 visa.

    DECISION

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

    Sheridan Lee
    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.