Singh (Migration)

Singh (Migration) [2020] AATA 6131 (2 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Gursimran Singh
CASE NUMBER:  1724893
DIBP REFERENCE(S):  BCC2016/3710105
MEMBER:Warren Stooke AM
DATE:2 June 2020
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 02 June 2020 at 4:26pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – subject of an approved nomination – 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

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).
The visa applicant applied for the visa on 7 November 2016.
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.
The delegate refused to grant the visa on 25 September 2017 on the basis that cl.457.223(4) of the Regulations was not met because the primary applicant is not the subject of an approved nomination.
The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent, who did not attend the hearing.
The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision of 25 September 2017, which he had provided to the Tribunal with his application.
The applicant stated that he understood his 457 visa application had been refused because his employer on the nomination had not been approved
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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. The applicant confirmed to the Tribunal that he understood the issue in his case.
On 17 March 2020, the Tribunal invited the applicant to attend a hearing to give evidence and present arguments relating to the issues arising in the applicant’s case. In response to a request for postponement, the Tribunal postponed the hearing until 19 March 2020, which was not attended by the applicant.
On 23 April 2020 the Tribunal, pursuant to s359(2), invited the applicant to comment on or respond to information that contained the following particulars:
“INVITATION TO COMMENT ON OR RESPOND TO INFORMATION AND TO PROVIDE INFORMATION - MR GURSIMRAN SINGH
I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.
Invitation to comment on or respond to information
In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.
Please note, however, that we have not made up our mind about the information. The particulars of the information are:
·     The application for approval of the nominated position made by Iconic Property Services Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT (copy of decision attached). This means that the nominator's application for the nominated position has not been approved.
This information is relevant to the review because it is a requirement for the grant of the visa that the position specified in your visa application is the subject of an approved nomination.
You are invited to give comments on or respond to the above information in writing.
Invitation to provide information
You are also invited to provide the following information in writing:
·     Evidence of approval of a standard business sponsor.
Timeframe to give comments or response and provide information
Your comments or response and the information should be received by 7 May 2020. If the comments or response or information are in a language other than English, they must be accompanied by an English translation from an accredited translator.
If you cannot provide either the written comments or response or the information or both, by 7 May 2020, you may ask us for an extension of time. If you make such a request, it must be received by us before 7 May 2020 and you must state the reason why the extension of time is required.
We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.
Consequences of not responding to either invitation
If we do not receive either your comments or response or the information within the period allowed or as extended, we may make a decision on the review without taking any further action to obtain your views on the information or to obtain the information. You will also lose any entitlement you might otherwise have had under the Migration Act to appear before us to give evidence and present arguments.
·     If you have any questions, please email mrdivisionaat.gov.au, or contact me on the number listed below, or telephone our national enquiry line on 1800 228 333. For language assistance, please contact the Translating and Interpreting Service (TIS) on 131 450.
On 7 May 2020, the applicant responded to the Tribunal and was not able to provide specific evidence that he had an approved standard business sponsor, with his advised employer, Iconic Property Services Pty Ltd (the nominator).
In the absence of specific evidence being provided, the Tribunal invited the applicant to attend a further hearing on 2 June 2020.
The applicant stated at hearing that he had sponsorship from Iconic on the basis that he has got a visa but he [the sponsor] failed in the nomination.
The applicant stated: “I don’t have a nomination at the moment”.
The Tribunal explained to the applicant that to be granted a visa the applicant must satisfy cl.457.223(4)(a), which requires an approved ‘standard business sponsor’ and did he understand that requirement. The applicant responded: “Yes I do”.
The Tribunal put to the applicant that the evidence he had provided is that he did not have a sponsor and he confirmed to the Tribunal: “Yes. I do not have one at the moment”.
The applicant provided evidence that he had contacted a few companies, but they need more time.
The applicant stated that he had talked to his agent and he said: “if I can get another sponsor I can apply for a new visa”.
The Tribunal responded that the applicant needed to get advice on that.
The applicant confirmed to the Tribunal that he was still working with Iconic.
Requirement for an approved nomination
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.
The evidence before the Tribunal is that the applicant does not have an approved standard business sponsor. As such, the Tribunal finds that the applicant has not met the requirements of cl.457.223(4)(a).
For these reasons the requirements of cl.457.223(4)(a) are not met.
As the primary applicant does not meet cl.457.223(4)(a), the Tribunal finds that the secondary applicant is not a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a subclass 457 visa. Consequently, the secondary applicant does not meet clause 457.321 for grant of a Temporary Business Entry (Class UC visa).
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Temporary Business Entry (Class UC) visa.
Warren Stooke AM
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.

[2020] AATA 6131

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

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