TWO SISTERS FAMILY TRUST (Migration)

[2020] AATA 5482

TWO SISTERS FAMILY TRUST (Migration) [2020] AATA 5482 (10 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  TWO SISTERS FAMILY TRUST

CASE NUMBER:  1814118

HOME AFFAIRS REFERENCE(S):          BCC2017/2955514

MEMBER:Wan Shum

DATE:10 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to approve the nomination.

Statement made on 10 November 2020 at 9:36am

CATCHWORDS

MIGRATION – approval of a nomination – position of Café or Restaurant Manager – no longer a standard business sponsor – recent information on financial situation or operations – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 140GB, 359, 363
Migration Regulations 1994, rr 2.72, 2.73

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 26 April 2018 to refuse to approve the applicant’s nomination under s.140GB of the Migration Act 1958 (the Act) and r.2.72 of the Migration Regulations 1994 (the Regulations).

2. The applicant applied for approval on 17 August 2017. A nomination of an occupation for a Subclass 457 visa is made under s.140GB of the Act and r.2.73 of the Regulations. Regulations 2.72(3) to (12) prescribe the criteria that must be satisfied for the Minister to approve a nomination by a person. These criteria are extracted in the attachment to this decision. For nomination applications made from 23 November 2013, additional criteria are specified in s.140GBA.

3. The delegate decided not to approve the nomination on the basis that the applicant was no longer a standard business sponsor and was not a party to a work agreement.

4. The applicant sought review and was represented by a registered migration agent.

5. For the following reasons, the Tribunal has decided to affirm the decision under review to refuse the nomination.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the person seeking approval for the nomination meets the criteria. The Tribunal must approve the nomination if the nominator is an approved sponsor and meets the requirements in r.2.72: s.140GB(2).

7. When the application for review was lodged, the application form was accompanied by a copy of the decision. However, no submissions or supporting documents were provided. The Tribunal wrote to the nominating business pursuant to s.359(2) of the Act on 9 October 2020 inviting the applicant to provide updated and current information addressing the requirements in r.2.72. They were advised that if no response was received they would lose any entitlement to a hearing and the Tribunal may make a decision without taking any further action. The nominator was invited to provide the information by 23 October 2020.

8. The applicant did not respond to the Tribunal within the prescribed period and did not request an extension of time within which to respond. In these circumstances, s.359C applies and pursuant to s.360(3) the applicant is not entitled to appear before the Tribunal. The effect of s.363A 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.

9. In this case, the Tribunal has decided to proceed to a decision without taking steps to obtain further information or comments from the applicant.

10. The invitation was sent to the last email address provided on review. The Tribunal has proceeded to a decision based on the information before it which is the information provided for the application to the Department.

11. That information is over two years old. Despite a request for information about the current organisational structure, nothing was provided to the Tribunal and the current size of the business is not known. The Tribunal has no recent information as to its financial situation or operations.

12. There is nothing before the Tribunal to explain the current need for a Café or Restaurant Manager.

13. As the Tribunal has not been given any updated or recent information as to its current operations, profitability or need to employ the visa applicant in the nominated position, it is not satisfied that the position associated with the nominated occupation is genuine. Therefore, the requirements of r.2.72(10)(f) are not met.

14. For the reasons given above, the Tribunal is not satisfied that the applicant meets the applicable criteria for the nomination to be approved. Accordingly, the decision under review must be affirmed.

    DECISION

15. The Tribunal affirms the decision not to approve the nomination.

    Wan Shum
    Member