Song (Migration)

[2021] AATA 2366

Song (Migration) [2021] AATA 2366 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Woojung Song

CASE NUMBER:  1825972

HOME AFFAIRS REFERENCE(S):          BCC2017/2305900

MEMBER:C. Packer

DATE:24 June 2021

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 24 June 2021 at 5:10pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Wall and Floor Tiler – skills, qualifications and employment background required for the nominated occupation – no current employment information – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359, 363
Migration Regulations 1994, 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 of a delegate of the Minister for Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 29 June 2017. 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 (Cth) (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.

3. The delegate refused to grant the visa on 17 August 2018 on the basis that cl 457.223(4)(da) was not met because the delegate was not satisfied that the applicant had the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of Wall and Floor Tiler ANZSCO 333411.

4. On 24 March 2021 the Tribunal wrote to the review applicant pursuant to s.359 of the Act, inviting the review applicant to provide information in writing. The letter stated in part:

   You are invited to provide the following information in writing:

    Current information about your skills, qualifications and employment background.

   Without limiting the types of information and/ or documents you can provide, the following may assist you in demonstrating that you can perform the tasks of the nominated occupation:

    Information about all the qualifications that you have completed, together with supporting evidence.
    Information about your employment history, together with supporting evidence from your employers.

    Information about any other skills you have acquired which is relevant to your nominated occupation.

5. The invitation was sent to the last address provided in connection with the review and advised that, if the information was not provided in writing by 7 April 2019 the Tribunal may make a decision on the review without taking any further action to obtain the information, and “You will also lose any entitlement you might otherwise have had under the Migration Act 1958 to appear before us to give evidence and present arguments.”

6. On 24 March 2021 the review applicant provided documents:

   ·Certificate III in wall and floor tiling, Institute of Training, issued 23/6/2017

   ·Position description, signed 28 and 29/6/2017

   ·Employment agreement dated 15/6/2017

   ·Ace Housing Service reference dated 16/10/2017 for work performed to February 2017

7. All of the documents are dated in 2017, now four years in the past and distant in time. The review applicant did not provide current information about his skills and employment background as he was invited to do so.

8. The Tribunal finds the review applicant has not provided the invited current information within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

9. For the following reasons, the Tribunal has decided to affirm the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Genuine intention

10. Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.

11. The applicant’s response to the Tribunal’s letter of 24 March 2021, on the same day, did not include any letter or information from the nominator ASEEOS Services Pty Ltd, and did not include any information about the nominated position and the applicant’s skills and employment background, after June 2017.

12. There is no material before the Tribunal concerning the nominated position and the applicant’s skills and employment background concerning the past several years. There is no material before the Tribunal concerning the nominated position and the applicant’s skills and employment background that is current.

13. In sum, the Tribunal has assessed whether cl. 457.223(4)(d) is satisfied at the time of this decision. However, in light of the lack of any relevant information concerning the past several years, the Tribunal is not satisfied that the applicant’s intention to perform the occupation is genuine or that the position associated with the nominated occupation is genuine.

14. For these reasons the requirements of cl 457.223(4)(d) are not met.

    Conclusion

15. 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

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

    C. Packer
    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.