Xie (Migration)

[2019] AATA 1886

Xie (Migration) [2019] AATA 1886 (3 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shixin Xie

CASE NUMBER:  1610956

DIBP REFERENCE(S):  BCC2015/3591285

MEMBER:C. Packer

DATE:3 April 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 03 April 2019 at 5:07pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – standard business sponsor not approved – no response to request for information – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360, 363
Migration Regulations (Cth) 1994, r 2.72, Schedule 2, cl 457.223
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant applied for the visa on 30 November 2015.

2. 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.

3. The delegate refused to grant the visa on 29 June 2016 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

4. On 19 March 2019 the Tribunal wrote to the applicant pursuant to s.359 of the Act, inviting the applicant to comment on or respond to certain information which the Tribunal considered would, subject to any comments or response, be the reason, or a part of the reason, for affirming the decision under review.

5. 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 2 April 2019 the Tribunal may make a decision on the review without taking further steps to obtain the information and the applicant would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

6. The applicant has 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 applicant is 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. The Tribunal has decided to proceed to decision without taking further steps to obtain the information.

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) that requires there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. However, as the Tribunal’s letter indicated, on 15 March 2019 the Tribunal affirmed the decision not to approve The Trustee for 323-331 La Trobe Street as a standard business sponsor. Without an approved business sponsor, she cannot meet an essential criterion for the grant of the visa. As well, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r.2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa. It is a requirement for the grant of the visa that she is the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of her file shows that she is not the subject of an approved nomination by a standard business sponsor, and a new application for approval of a nomination in support of her Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

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

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

    DECISION

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

    C. Packer
    Member