Singh (Migration)

[2019] AATA 4569

Singh (Migration) [2019] AATA 4569 (5 September 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Harpal Singh

CASE NUMBER:  1714995

DIBP REFERENCE(S):  BCC2016/2833531

MEMBER:  Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 September 2019 at 3:50 pm (QLD time)

DATE OF WRITTEN RECORD:                23 September 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination application refused – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 21 June 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) Subclass 457 visa under the Migration Act 1958 (the Act).

2. At the hearing on 5 September 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The visa applicant applied for the visa on 26 August 2016. At the time the application was lodged, Class UC contained Subclass 457. The delegate refused to grant the visa on the basis that cl.457.223(4)(a) was not met because the visa applicant was not the subject of an approved nomination as required.

4. The applicant lodged an application for a review of the delegate’s decision with the Tribunal on 12 July 2017 and provided the Tribunal with a copy of the delegate’s decision record.

5. On 5 August 2019, the Tribunal invited the applicant to comment or respond to certain information before it. The Tribunal’s letter included as follows:

   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 the Trustee for Sathiyavan Family Trust (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but the Tribunal found that it had no jurisdiction to consider that application. This means that the nominator’s application for the nominated position has not been approved.

   The above information is relevant to the review because if accepted and relied upon by the Tribunal, it would be the reason or part of the reason for the Tribunal to affirm the decision made to refuse to grant you a Subclass 457 visa.

   This is because one of the criteria that is required to be met for grant of the visa, namely clause 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 as in force at the date of the visa application, requires that you are the subject of an approved nomination by a standard business sponsor, in relation to a specified occupation, which has not ceased.

6. On 19 August 2019, the applicant’s representative responded on behalf of the applicant to the Tribunal’s invitation, stating, among other things: that the applicant was not aware that the nominator had failed to lodge an appeal; that the applicant was under the impression that the Tribunal would make necessary inquiries to establish with the nominator about the genuineness of the appeal; and that he lodged his appeal on the understanding that the nominator had appealed and that this is the reason the Tribunal acknowledged the applicant’s appeal.

7. The applicant appeared before the Tribunal on 5 September 2019 to give evidence and present arguments.

8. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a), which requires that there be an approved nomination of an occupation relating to the visa applicant by a standard business sponsor that has not ceased.

   Case Number 1714995  Page 2 of 3

1. The applicant told the Tribunal at hearing that when he applied for the visa the business was doing very well and once he was refused the visa he spoke to the owner/boss of the business and the boss told him that he could apply to the Tribunal. The boss also told him that he would look after the business and also look after the appeal in relation to the nomination application. However, when the visa applicant subsequently tried to contact the boss, he was not able to make contact with him and also to his shock, when he visited the boss’s workshop, it was no longer there and was gone.

2. As discussed with the applicant at the hearing, the Tribunal acknowledges the frustration that it must have caused for the visa applicant in the circumstances. However, as regards the relevant issue before the Tribunal, there is no evidence before the Tribunal of an approved nomination of an occupation relating to the visa applicant by a standard business sponsor that has not ceased and there is no other evidence before the Tribunal of any other nomination application and approval that would satisfy the requirement.

3. There is therefore no evidence before the Tribunal that it can make a finding that the requirements of cl.457.223(4)(a) are met and for these reasons the Tribunal finds that the requirements of that subparagraph are not met.

4. The Tribunal therefore finds that the requirements of the standard business sponsor stream have not been met. No claims have been made in respect of any other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for these streams.

5. It follows that the visa applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa. The decision under review to refuse to grant the applicant the visa must be affirmed.

   DECISION

6. The Tribunal affirms the decision under review.

   Susan Trotter
   Member

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