Trinh (Migration)

[2021] AATA 3517

Trinh (Migration) [2021] AATA 3517 (30 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Phu Trinh

CASE NUMBER:  1830484

HOME AFFAIRS REFERENCE(S):          BCC2018/938984

MEMBER:Katie Malyon

DATE:30 August 2021

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2021 at 1:29 pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – standard business sponsor stream – position of Accountant (General) – no approved nomination – decision under review affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 140GB, 353, 359, 363
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223

CASES

Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28

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 10 October 2018 to refuse to grant the applicant, Vietnamese national, Mr Phu Trinh a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (the Act).  Mr Trinh applied for the visa on 27 February 2018.

2. 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). One of the criteria to be satisfied at the time of decision is cl 457.223 of Schedule 2 to the Regulations which requires the visa applicant to satisfy one of the 2 alternative ‘streams’ for the visa. In the present case, specific claims have been made by Mr Trinh against cl 457.223(4) of Schedule 2 to the Regulations which applies to sponsorship for employment in an occupation by a standard business sponsor. Relevant provisions of the Regulations are set out in the Attachment to this decision. No claims have been made in respect of the other alternative stream in cl 457.223(2) of Schedule 2 to the Regulations, the labour agreement stream.

3. The delegate refused to grant the visas on 10 October 2018 on the basis that cl.457.223(4)(a) of Schedule 2 to the Regulations was not met by Mr Trinh because the nomination for the position of Accountant (General) ANZSCO 221111 by Mr Trinh’s proposed sponsor, Safe T Surfaces Pty Ltd ( (the Company), was not approved under s.140GB of the Act. A copy of the delegate’s decision was provided to the Tribunal.

4. On 29 July 2021, the Tribunal wrote to the applicant inviting him to attend a teleconference hearing on 27 August 2021. Following constitution of the matter to the Member, the Tribunal wrote to Mr Trinh on 6 August 2021 pursuant to s.359A of the Act. In its letter the Tribunal noted that, although the Company had applied for review of the delegate’s refusal of its nomination (Tribunal Case No. 1826023), on 17 May 2021 the Tribunal had affirmed the delegate’s decision to refuse the nomination.

5. In addition, the Tribunal observed that one of the requirements for grant of a Subclass 457 visa is that a nomination of an occupation in relation to the visa applicant has been approved under s.140GB of the Act. The Tribunal also noted that the Migration Amendment (Temporary Skills Shortage visa and Complementary Reforms) Regulations 2018 were introduced on 18 March 2018 (the Amending Regulations).  Following introduction of the Amending Regulations, a new application for approval of a nomination in support of grant of a Subclass 457 visa can no longer be made. 

6. The Tribunal stated it appeared the applicant is not 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, since 18 March 2018, a new application for approval of a nomination in support of a Subclass 457 visa can no longer be made. The Tribunal observed that, if it relies on this information, it may find that Mr Trinh is not the subject of an approved nomination and, therefore, he does not satisfy the requirements in cl.457.223(4)(a) of Schedule 2 to the Regulations for grant of the visa.

7. Mr Trinh was requested to provide the Tribunal with comments or a response to this information by 20 August 2021. In its letter, the Tribunal advised that, if his comments or response was not provided in writing by 20 August 2021 or, if a request was not been made for an extension of time in which to provide the information, the Tribunal may make a decision on the review without taking any further action to obtain the information. Further, the Tribunal noted that the applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

8. The Tribunal’s s.359A letter was sent to the applicant’s representative at the email address given in the review application. No comments or response has been provided by the applicant within the prescribed period to the information the subject of the Tribunal’s s.359A letter, and no extension of time has been requested. In these circumstances, s.359C of the Act applies and, pursuant to s.360(3) of the Act, Mr Trinh 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: Hasran v MIAC [2010] FCAFC 40.

9. The Tribunal has considered whether this is an appropriate case for it to adjourn the review under s.363(1)(b) of the Act to allow the applicant additional time in which to provide evidence to support their review application. In this regard, the Tribunal has considered: whether, in the circumstances of this case and having regard to the current COVID-19 pandemic, evidence that Mr Trinh meets the relevant requirements of cl.457.223(4) of Schedule 2 to the Regulations is likely to be forthcoming; whether he has already had a fair opportunity to provide the relevant information or documentation or, in the alternative, request an extension of time in which to do so; and, the significance of the information to him. The Tribunal has also taken into account the decisions in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts have held that the Tribunal is not required to indefinitely defer its decision-making processes.

10. In the circumstances of this case, the Tribunal considers Mr Trinh has had sufficient time in which to address the issue arising on review, that is, whether he is the subject of an approved nomination or, in the alternative, seek an extension of time in which to provide evidence in support of such a claim. The Tribunal observes that adjourning the review any further is only likely to unnecessarily further delay conduct of the review, contrary to the legislative objects of the Tribunal as set out in s.353 of the Act and s.2A of the Administrative Appeals Tribunal Act 1975. Accordingly, the Tribunal has decided not to exercise its discretion under s.363(1)(b) of the Act to adjourn the review any further. The Tribunal has determined to make a decision on the review without taking any further action to obtain the information, comments or response from the applicant in accordance with s.359C of the Act.

11. For the following reasons, the Tribunal has decided that the decision under review must be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the applicant, Mr Trinh, meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

13. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to Mr Trinh by a standard business sponsor that has not ceased.

14. As noted above, having reviewed the Department’s records on 6 August 2021 the Tribunal wrote to the applicant pursuant to s.359A of the Act with details of information that is adverse to Mr Trinh’s review application. The Tribunal stated that that on 17 May 2021 the Tribunal affirmed the delegate’s decision to refuse the nomination of the Company. It 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. Further, it observed that there is no evidence before the Tribunal which confirms there is any approved or pending nomination relating to the applicant. Mr Trinh did not respond to the Tribunal’s s.359A letter, nor did he request additional time in which to respond.

15. Having regard to available evidence, the Tribunal finds that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are not met by Mr Trinh. Accordingly, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made by Mr Trinh 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 he would be able to satisfy the specific criteria for that stream. Accordingly, the Tribunal finds that the decision to refuse Mr Trinh’s Subclass 457 visa application must be affirmed.

    DECISION

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

    Katie Malyon
    Member

    ATTACHMENT - Extracts from the Migration Regulations 1994

    Schedule 2 Part 457

    …

    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