Smith (Migration)

[2021] AATA 4855

Smith (Migration) [2021] AATA 4855 (9 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kevin Owen Smith

CASE NUMBER:  1832451

HOME AFFAIRS REFERENCE(S):          BCC2017/3197770

MEMBER:Ian Berry

DATE:9 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 09 November 2021 at 3:08pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Standard Business Sponsor stream – fitter – sponsor had withdrawn its nomination review application – no approved nomination of an occupation in respect of the applicant – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359, 360, 363
Migration Regulations 1994, r 2.75, Schedule 2, cl 457.223

CASES
Hasran v MIAC [2010] FCAFC 40

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 3 November 2018 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 September 2017. At the time the 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).

3. The delegate refused to grant the visa on the basis that cl 457.223 was not met because the applicant was not the subject of far an approved nomination of the occupation of  (ANZSCO 323211).

4. The applicant was represented in relation to the review by his registered migration agent Ms M Taaffe MARN 0851585.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the applicant has an approved nomination for the position of fitter, which has now been withdrawn.

7. Clause 457.223 requires the applicant to be approved as a nominee of a valid application which has not been withdrawn. Clause 457.223 states:

   457.223

   (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 under regulation 2.75 and

   (The underlining was inserted by the Tribunal)

8. On prior to 12 October 2021, the Tribunal received from the applicant’s nominator, a document commonly referred to as a ‘Withdrawal form’ which the Tribunal accepted on 12 October 2021.

9. In accordance with procedural fairness, on 15 October 2021 the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review:

10. The particulars of the information given to the applicant are set out below:

    On 4 September 2017, you lodged an application for a Temporary Business Entry (Class UC) (Subclass 457) visa with the Department of Home Affairs (then called the Department of Immigration and Border Protection) (the Department).

    ·On 24 September 2018, the nominator, Eire Day Contractor Pty Ltd, had their nomination application (nomination) refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 15 October 2018.

    ·On 12 October 2021, the nominator withdrew their application for review with the Tribunal.

    ·This information is relevant to the review because if the primary applicant cannot satisfy the criteria in clause 457.223 then the visa application cannot be granted.

    If we rely on this information in making our decision, we may affirm the decision made by the Department.

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

11. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 29 October 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and you would lose any entitlement you might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments and for the Tribunal to proceed to make its decision.

12. As you have not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, then the Tribunal has no power to permit you to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

13. As the applicant has neither an approved nomination nor a nomination which had been approved which has not been withdrawn, the applicant cannot succeed as he does not satisfy clause 457.223(a)(i) and (iii).

14. Accordingly, cl 457.223 is not met.

15. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review must be affirmed.

    DECISION

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

    Ian Berry
    Member