XU (Migration)

[2021] AATA 1376

XU (Migration) [2021] AATA 1376 (7 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Xiaodan XU

CASE NUMBER:  1803030

HOME AFFAIRS REFERENCE(S):          BCC2017/847994

MEMBER:George Hallwood

DATE:7 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 07 May 2021 at 12:43pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – no appearance by nominator at combined hearing – application for review of refusal of related nomination application dismissed and dismissal confirmed – no response to tribunal’s invitation to comment – applicant continues to be employed by nominator – decision under review affirmed

LEGISATION
Migration Act 1958 (Cth), ss 65, 362B(1A)(b)
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 3 March 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 (Cth) (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 17 January 2018 on the basis that cl 457.223(4)(a) was not met because the applicant’s prospective employer, Sydney Capital Investments Pty Ltd (the nominator), did not have an approved nomination for the applicant.

5. The applicant appeared before the Tribunal on 10 March 2021 to give evidence and present arguments. The hearing was set down as a combined hearing with the nominator file number 1800369, however on the day of the hearing the agent representing both the applicant and the nominator informed the Tribunal that the nominator refused to attend and that there was no expectation that they would in future. The applicant confirmed that she continued to be employed by the nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The Tribunal exercised its discretion to hold the hearing by video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. No concerns were raised by the applicant either to the hearing being combined or the hearing being held by video and the Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

10. 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.

11. On 11 March 2021 the Tribunal dismissed Sydney Capital Investments Pty Ltd’s nomination application under s362B(1A)(b) of the Act and on 6 April 2021 the Tribunal confirmed the decision to dismiss.

12. On 9 April 2021 the Tribunal wrote to the applicant inviting them to comment on adverse information stating:

    The particulars of the information are:

    ·     A subclass 457 visa cannot be granted without an approved nomination. On 9 April 2021 the Tribunal affirmed the delegate's decision to refuse the nomination application of Sydney Capital Investments Pty Ltd file 1800369. In the absence of an approved nomination, the application for a subclass 457 visa cannot succeed. This adverse information will be the reason or part of the reason for the Tribunal to affirm the decision. The applicant is invited to provide comment or a response to this adverse information.

    You are invited to give comments on or respond to the above information in writing.

    Your comments or response should be received by 23 April 2021. If the comments or response are in a language other than English, they must be accompanied by an English translation from an accredited translator.

    If you cannot provide your written comments or response by 23 April 2021, you may ask us for an extension of time in which to provide the comments or response. If you make such a request, it must be received by us by 23 April 2021 and you must state the reason why the extension of time is required.

    We will carefully consider any request for an extension of time and will advise whether or not the extension has been granted.

    [Bolding as in the original]

13. The letter sent by the Tribunal to the applicant on 9 April 2021 also set out what would happen if the Tribunal did not receive comments or a response within the period allowed including that the Tribunal may take no further action to obtain the applicant’s views on the information, and that the applicant would lose any entitlement they may otherwise have had under the Act to appear before the Tribunal to give evidence or present arguments.

14. No response has been received from the applicant to date.

15. The Tribunal is sympathetic that the applicant, it appears on the evidence before the Tribunal through no fault of her own, has been left without the support of her sponsor at the time she was due to attend a hearing. The Tribunal, however, is not satisfied that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

16. For this reason the requirements of cl 457.223(4)(a) are not met.

    CONCLUDING PARAGRAPH

17. 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

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

    George Hallwood
    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.