Wilson (Migration)

[2020] AATA 4898

Wilson (Migration) [2020] AATA 4898 (13 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ryan Vincent Wilson
Miss Amanda Farina

CASE NUMBER:  1732162

DIBP REFERENCE(S):  BCC2017/736034

MEMBER:R. Skaros

DATE:13 October 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 13 October 2020 at 8:36am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Recruitment Consultant – specified occupation – IMMI 17/060 – occupation subject to three inapplicability conditions – base salary of less than AUD65,000 – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), 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 Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 23 February 2017.

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 visas on 12 December 2017 on the basis that cl.457.223(4)(aa) was satisfied because the nominated occupation of Recruitment Consultant ANZSCO 223112, which was the subject of an inapplicability condition, was not one that had been specified in the relevant instrument.

5. On 10 September 2020 the Tribunal wrote to the applicants pursuant to s.359 of the Act and invited them to provide information about the nominated occupation and the inapplicability conditions that affect the applicant’s nominated occupation in writing.

6. 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 24 September 2020, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

7. On 25 September the authorised representative wrote to the Tribunal stating that the applicants will not be providing any further information.  The Tribunal was also informed of the applicants’ current address and a request was made for the case to be transferred to Victoria.  The Tribunal notes that the applicant’s contact details have been updated and all correspondence will be sent to the authorised recipient as instructed.

8. The review applicants have not provided the 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 applicants are 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. The applicants were represented in relation to the review by their registered migration agent.

10. The Tribunal is satisfied that the invitation to provide information was sent to the authorised recipient at the correct email address. The Tribunal is satisfied that the invitation to provide information was received by the representative and the Tribunal has been advised, after the prescribed period had ended, that no further information would be provided. In the circumstances, the Tribunal has decided to proceed to a decision on the information before it.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(aa).

13. Clause 457.223(4)(aa) of the Regulations requires that the nominated occupation is specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect. Regulation 2.72(10)(a) applies to nominations made before 1 July 2010, whilst r.2.72(10)(aa) applies to nominations made on or after 1 July 2010. The applicant was nominated in the occupation of Recruitment Consultant by PKL Personnel Pty Ltd on 31 March 2017, paragraph 2.72(10)(aa) is therefore relevant in this case.    

14. The instrument that was in effect and is applicable in this case is IMMI 17/060. This instrument makes specifications under r.2.72(10)(aa) of the Regulations in respect of occupations for a Subclass 457 visa.

15. As noted above, the applicant was nominated for a position in the occupation of Recruitment Consultant. While the specification of occupation in IMMI 17/060 includes the occupation of Recruitment Consultant, the occupation is subject to three inapplicability conditions, which are:

    2         The position has a nominated base salary of less than AUD65,000.

    19 The position is in a business that has an annual turnover of less than AUD1,000,000.

    21       The position is in a business that has fewer than 5 employees.

16. If an occupation is affected by any of the inapplicability condition to which it is subject, it is excluded from the list of occupations.

17. As noted above, the applicant was invited to provide current information about the inapplicability conditions that affect his nominated occupation. In response, the Tribunal was informed that no further information would be provided.

18. The evidence before the Tribunal, as indicated on the delegate’s decision record, which was provided to the Tribunal on review, is that the applicant’s nominated base salary is $55,000. As the position has a base salary that is less than AUD 65,000, it follows that the occupation of Recruitment Consultant is affected by inapplicability condition 2 in the instrument and is excluded from the specified list of occupations.

19. The Tribunal further notes that there is no current evidence before it regarding the annual turnover of the nominator’s business or its number of employees. In the circumstances, the Tribunal is unable to determine whether inapplicability conditions 19 and 21 also apply in this case.

20. Given the above, the Tribunal finds that the nominated occupation of Recruitment Consultant is not applicable to the applicant in this case and is therefore not specified in the instrument for paragraph 2.72(10)(aa) that is in effect. The requirement in cl.457.223(4)(aa) is therefore not met.

21. The primary visa applicant has not met cl.457.223(4)(aa). The secondary applicant has applied for the visa on the basis of being a member of the family unit of the first named applicant and has not claimed to meet the primary criteria for the visa. In the circumstances, the decision under review must be affirmed.

22. 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

23. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    R. Skaros
    Senior 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.