TANGWATANAKHIT (Migration)

[2019] AATA 1040

TANGWATANAKHIT (Migration) [2019] AATA 1040 (28 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Eakkasit Tangwatanakhit

CASE NUMBER:  1701295

DIBP REFERENCE(S):  BCC2016/1355043

MEMBER:Katie Malyon

DATE:28 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 March 2019 at 1:25 pm

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– Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination expired – 457 visa program repealed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cl 457.223

CASES
Harsan 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 Immigration to refuse to grant the visa applicant, Mr Eakkasit Tangwatanakhit, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Tangwatanakhit applied for the visa on 4 April 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) and 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 stream in cl.457.223 of the Regulations, the labour agreement stream.

4. The delegate refused to grant Mr Tangwatanakhit the visa on 4 January 2017 on the basis that he did not satisfy cl.457.223(4)(e) of Schedule 2 to the Regulations because he did not provide evidence of a successful outcome in his skills assessment as a Chef. A copy of the delegate’s decision was provided to the Tribunal.

   Background

5. Mr Tangwatanakhit is a Thai national.  He was nominated by approved standard business sponsor, Emibarb Pty Ltd ATF Emibarb Trust (the Company), to work with the Company as a Chef. Departmental records indicate that the nomination lodged by the Company in relation to Mr Tangwatanakhit was approved on 13 December 2016. Accordingly, consistent with r.2.75(2)(b) of the Regulations, that nomination expired on 13 December 2017.

6. The Tribunal received an email from Mr Tangwatanakhit’s representative on 12 December 2017 with advice that he no longer acts for Mr Tangwatanakhit and that any future correspondence should be sent direct to Mr Tangwatanakhit.  On 13 December 2017, the Tribunal acknowledged the representative’s email and sent a letter by email to both Mr Tangwatanakhit and his representative advising that, until such time as Mr Tangwatanakhit returns either an Appointment of Representative/Appointment of Authorised Recipient form or a Change of Contact Details form, the Tribunal would continue to send correspondence to both parties.  Mr Tangwatanakhit did not return either form to the Tribunal.   

7. On 8 March 2019, the Tribunal wrote to Mr Tangwatanakhit pursuant to s.359A of the Act. As the Tribunal had not received either of the forms referred to above in para [6] from Mr Tangwatanakhit, the Tribunal sent its letter to both Mr Tangwatanakhit and his (former) representative. In its letter, the Tribunal noted that effective 18 March 2018 the Migration Legislation Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations), repealed and replaced r.2.72 of the Regulations which sets out the criteria for nominations relating to Subclass 457 visas, and also repealed the Subclass 457 visa. The Tribunal also noted that, having reviewed Departmental records, Mr Tangwatanakhit is not currently the subject of an approved nomination by a standard business sponsor as required by cl.457.223(4)(a) of Schedule 2 to the Regulations and, further, a new application for approval of a nomination in support of his Subclass 457 visa can no longer be made.

8. Mr Tangwatanakhit was requested to provide any comments or response to the information in the Tribunal’s s.359A letter on or before 22 March 2019.

9. In response to the Tribunal’s s.359A letter, Mr Tangwatanakhit’s former representative referred to his earlier communication of 12 December 2017 in which is advised that he no longer acts for Mr Tangwatanakhit. On 12 March 2019, the Tribunal registry staff called Mr Tangwatanakhit to confirm his email address and inform him that a s.359A letter had been sent him. Mr Tangwatanakhit confirmed his email address is the same email address used by the Tribunal when forwarding its s.359A letter to him. He did, however, inform the Tribunal officer that he had since been granted a Partner visa and so would withdraw his review application in relation to the delegate’s refusal of his Subclass 457 visa. The Tribunal has established that Mr Tangwatanakhit’s Partner Subclass 820 visa application is still pending.

10. As at the date of this decision, Mr Tangwatanakhit has not sent a withdrawal of the review of his Subclass 457 visa application, and nor has he responded to the Tribunal’s s.359A letter.

11. Since Mr Tangwatanakhit has not provided any response to the Tribunal’s s.359A letter by the due date, the provisions of s.359C of the Act apply and, pursuant to s.360(3) of the Act, he 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 the applicant to appear: Harsan v MIAC [2010] FCAFC 40.

12. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The delegate refused Mr Tangwatanakhit’s Subclass 457 visa on the basis that he did not meet cl.457.223(4)(e) of Schedule 2 to the Regulations because he did not provide a skills assessment of his occupation as a Chef. However, given the passage of time since the lodgement of the review application and the impact of the Amending Regulations, the issue now is whether he meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

14. Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

15. As noted above, having reviewed the Departmental records, on 8 March 2019 the Tribunal wrote to Mr Tangwatanakhit pursuant to s.359A of the Act with details of information that is adverse to his application. The Tribunal outlined that the approved nomination made by the Company ceased on 13 December 2017 consistent with r.2.75(2)(b) of the Regulations. The Tribunal also noted that, following introduction of the Amending Regulations, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made.

16. Clause 457.223(4)(a) of Schedule 2 to the Regulations requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Further, there is no evidence before the Tribunal that there is any approved or pending nomination relating to Mr Tangwatanakhit.

17. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met. Accordingly, 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 stream in cl.457.223 of Schedule 2 to the Regulations – the labour agreement stream - and there is no evidence that Mr Tangwatanakhit would be able to satisfy the specific criteria for that stream.

    DECISION

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

    Katie Malyon

    
    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.

    oOOo