Vall Rojo (Migration)

[2020] AATA 473

Vall Rojo (Migration) [2020] AATA 473 (9 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Alexandra Vall Rojo

CASE NUMBER:  1826755

DIBP REFERENCE(S):  BCC2018/1262321

MEMBER:Jennifer Cripps Watts

DATE:9 January 2020

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 09 January 2020 at 10:18am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Social Worker – no approved nomination – nominator withdrew review application – did not respond to Tribunal’s correspondence – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359A, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 (the delegate) 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 16 March 2018.

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 7 February 2018 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. On 13 September 2019 the applicant applied for review and provided the Tribunal with a copy of the delegate’s decision.  A hearing was scheduled for 8 January 2020 and the applicant was invited, in accordance with s.360 of the Act, to attend the hearing in a letter sent to him on 10 December 2019.  It was requested in the hearing invitation that the applicant return the attached ‘Response to hearing invitation – MR Division’ form within seven days.  On 16 December 2019 the applicant informed the Tribunal that he was offshore and unable to attend the hearing and asked that a decision be made.  However, before a decision could be made, it was necessary to inform the applicant of adverse information relating to his nomination status. 

6. On 23 December 2019, the Tribunal sent a letter to the applicant, in accordance with s.359A of the Act, with a response due no later than 6 January 2020.  In the letter it was included that if the applicant did not respond within the stated or any extended timeframe, he would lose his right to appear before the Tribunal to give oral evidence and that the hearing would be cancelled.  The applicant did not respond or request additional time to respond.  On 7 January 2020, the Tribunal wrote to the applicant informing him that he had lost his right to a hearing.  He was advised that the Tribunal would make a decision no later than 5:00pm on 8 January 2020 and he was invited to provide any additional documents or information before that time. 

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a)(i), that is, whether he is the subject of a nomination of an occupation that has been approved under s.140GB of the Act.

   Requirement for an approved nomination

9. 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.

10. It is noted in the delegate’s decision that the applicant was informed in writing, on 27 July 2018, that his prospective sponsor, Civic Disability Services Limited – Caringbah, did not have an approved nomination and that the applicant was given an opportunity to respond or comment, provide evidence of a related nomination or to withdraw his visa application.  He responded on 27 August 2018 and informed the Department that Civic Disability Services Limited – Caringbah had lodged a review application with the Tribunal.  The delegate found that cl.457.223(4)(a) was not met and the applicant’s visa was refused.

11. On 23 December 2019, the Tribunal wrote to the applicant inviting him to comment on or respond to certain information which the Tribunal considered would, subject to his comments or response, be the reason, or a part of the reason, for affirming the decision under review.  It was explained in the letter why the information was relevant:

    ‘The particulars of the information are:

    ·     On 27 August 2018, your Subclass 457 visa was refused by a delegate of the

    Minister, essentially because you did not have a nomination, as the nomination

    application by Civic Disability Services Ltd identifying you in the occupation of

    Social Worker had been refused on 27 July 2018. The Department advised you of this in writing on the same day and you were invited to comment on this adverse information.

    ·     Both you and the nominator relating to your visa application, Civic Disability

    Services Ltd, lodged applications for review with the Tribunal. On 2 November

    2018, Civic Disability Services Ltd informed the Tribunal, in writing, that it wished to withdraw its review application. On 6 November 2018, the Tribunal accepted the withdrawal of the Civic Disability Services Ltd review application relating to your matter. Their matter has been finalised.

    ·     For the grant of a Subclass 457 visa, you must meet cl.457.223 which requires, essentially, that you are the subject of an approved nomination. Information before the Tribunal indicates you are not the subject of an approved nomination. If this is the case, you will not be able to meet the criteria for the grant of the visa.  Subject to your comments or response, this is information that the Tribunal

    considers would be the reason, or a part of the reason, for affirming the decision that is under review.’

12. The applicant was informed that his comments or response should be received by 6 January 2020 and, if he could not respond by that time, that he could request an extension of time.  It was clearly stated in the letter that if the Tribunal did not receive the applicant’s comments or response that the Tribunal may make a decision without taking any further action to obtain his views on the information and that he would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

13. No response was received to the Tribunal letter sent on 23 December 2019.  The applicant was informed in writing that his hearing had been cancelled and that he could provide additional documents or information no later than 5:00pm on 8 January 2020, at or after which time the Tribunal would make its decision.  No additional documents or information were received by the Tribunal before 5:00pm on 8 January 2020.

14. On the evidence, the Tribunal is satisfied that the applicant is not the subject of a nomination granted under s.140GB of the Act, and that there is no review of the nomination refusal pending.

15. For these reasons the requirements of cl.457.223(4)(a) are not met.

16. 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 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

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

18. Jennifer Cripps Watts

    
    

    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.