Song (Migration)

[2018] AATA 4755

Song (Migration) [2018] AATA 4755 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zelin Song

CASE NUMBER:  1710057

DIBP REFERENCE(S):  BCC2016/420456

MEMBER:Antonio Dronjic

DATE:5 December 2018

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 05 December 2018 at 11:07am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – approved nomination – nomination that has not ceased – decision under review affirmed

LEGISLATION

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

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 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 28 January 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 visa on 27 April 2017 on the basis that cl.457.223 (4)(a) was not met. On 20 March 2017 the applicant was advised by the Department that his prospective employer Guihao Investment Pty Ltd did not have an approved nomination in place.

5. The applicant applied to the Tribunal on 10 May 2017, and provided a copy of the primary decision record with the application. The applicant was represented by a migration agent.

6. 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

7. 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.

8. On 19 November 2018, 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:

   The applicant was nominated by Guihao Investment Pty Ltd for a position of a Building Associate (ANZSCO 312112).

   The nomination application made by Guihao Investment Pty Ltd was refused by the Department on 28 March 2017.

   Guihao Investment Pty Ltd applied for review of this decision at the Tribunal on 18 April 2017.

   On 15 November 2018 this Tribunal affirmed the decision not to approve nomination made by Guihao Investment Pty Ltd.

   This 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 you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires the visa applicant to demonstrate that at the time the Tribunal comes to deciding the application, the visa applicant must be the subject of an approved nomination by a standard business sponsor, in relation to an occupation specified for the purpose of the Migration Regulations. The relevant provisions are set out in Attachment 1.

   If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that the applicant does not meet the criteria contained within clause 457.223(4)(a).

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

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

10. 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 1 October 2018.

11. 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)

12. 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.

13. In this case the Tribunal wrote to the applicant under subsection 359A of the Act inviting him to provide comments and/or or response to the Tribunal letter of 19 November 2018. The Tribunal notes that the applicant has had the benefit of representation from a registered migration agent to assist with the review application. Yet, neither the applicant nor his representative provided comments and/or or response within the prescribed periods set for this purpose.

14. The Tribunal has had regard to the fact that the visa application was refused by the Department on 27 April 2017, because the 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.

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

16. 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. 

17. Based on the evidence before it, the Tribunal finds that the 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 applicant that has not ceased.  The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a).

18. 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

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

    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.