Wong (Migration)

[2018] AATA 2477

Wong (Migration) [2018] AATA 2477 (8 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Ching Nee Wong
Mr Chin Meng Seah
Miss Yu Yan Seah
Master Yu Heng Seah
Miss Yu Fei Seah

CASE NUMBER:  1700298

DIBP REFERENCE(S):  BCC2016/1437975

MEMBER:Amanda Mendes Da Costa

DATE:8 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 08 June 2018 at 10:01am

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsor stream – Requirement for the applicant to be subject of an approved nomination – Nomination application refused by the Tribunal – Applicant not subject of an approved nomination – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359A, 359C, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kaur v Immigration and Border Protection (2014) 236 FCR 393
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protectionv Singh (2014) 231 FCR 437
Minister for Immigration and Citizenship v Li (2013) 239 CLR 332

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 Minister) 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 visas on 12 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) 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 22 December 2016 on the basis that cl.457.223 (4) (a) was not met because the primary applicant’s prospective employer, J.T. Chen & R.W. Chan did not have an approved nomination for the applicant.

5. The applicants seek review of the delegate’s decision and for that purpose have provided the Tribunal with a copy of the primary decision.

6. The applicants were represented in relation to the review by their registered migration agent.

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 applicant meets the requirements of cl.457.223 (4) (a).

   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. On 22 May 2018 this Tribunal affirmed the primary decision in respect of an application for review by the applicant’s prospective employer J.T. Chen & R.W. Chan on the grounds that the Tribunal was not satisfied that the position associated with the nominated occupation was genuine.

11. Pursuant to s.359A of the Act, the Tribunal wrote to the applicants, inviting them to comment on or respond to the Tribunal’s decision to affirm the primary decision in relation to the primary applicant’s prospective employer and the fact that if the nomination of an occupation in association with her visa application has not been approved under s.140GB of the Act, the requirements of cl.457.223(4)(a) of the Regulations are not met and the primary applicant does not meet the criteria for grant of a Subclass 457 visa.

12. The Tribunal further invited the applicants to comment on or respond to the Tribunal’s observation that the secondary visa applicants have made a combined application with the primary visa applicant and if the primary visa applicant does not meet the primary criteria for grant of the visa, the secondary applicants cannot meet the criteria for Subclass 457 visas as members of the family unit of a person who has satisfied the primary criteria.

13. The applicants did not respond to the Tribunal’s invitation.

14. Given that the applicants did not provide a response within the time frame provided by the Tribunal, s.359C applies and pursuant to s.360 (3) the applicants are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if an 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.

15. The Tribunal has given consideration to whether it should adjourn the review under subsection 363(1) (b) of the Act to allow the applicants additional time in which to provide further evidence to support the review application.  In doing so, the Tribunal has 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. It is also had regard to the decision in Minister for Immigration and Citizenship v Li (2013) 239 CLR 332 regarding the reasonableness of any request for adjournment and the Full Federal Court decision in Minister for Immigration and Border Protectionv Singh (2014) 231 FCR 437 which considered this issue, as well is a more recent decision in Kaur v Immigration and Border Protection (2014) 236 FCR 393 where analogous issues were discussed.

16. The Tribunal considered whether, in the circumstances of this case, the information that the primary applicant meets the requirements of cl.457.223(4)(a) of the Regulations is likely to be forthcoming, whether the applicant has had a fair opportunity to provide the relevant information or documents already and the significance of the informational documents of the applicant.

17. In these circumstances and for the reasons set out in this decision, the Tribunal considers that the applicants have had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicants more time in which to demonstrate that they meet the requirements of cl. 457.223(4)(a) of the Regulations.

18. Given that the nomination of an occupation in association of her visa application has not been approved under s.140GB of the Act, the requirements of cl. 457.223(4) (a) are not met by the primary applicant.

19. 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 primary applicant would be able to satisfy the specific criteria for those streams.

20. In relation to the secondary applicants, the Tribunal finds that as the primary applicant does not satisfy the criteria for grant of a Temporary Business Entry (Class UC) visa, the secondary applicants cannot meet the criteria for the grant of Subclass 457 visas as members of the family unit of a person who has satisfied the primary criteria.  The Tribunal therefore affirms the decision under review in relation to the secondary applicants.

    DECISION

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

    Amanda Mendes Da Costa
    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.