YEOMANS (Migration)

[2022] AATA 1596

YEOMANS (Migration) [2022] AATA 1596 (22 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Samuel YEOMANS

REPRESENTATIVE:  Ms Samantha Vitale (MARN: 0964981)

CASE NUMBER:  1830895

HOME AFFAIRS REFERENCE(S):          BCC2017/3829321

MEMBER:Michelle East

DATE:22 April 2022

PLACE OF DECISION:  Perth

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

Statement made on 22 April 2022 at 3:23pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved occupation nomination – related nomination application refused and application for review withdrawn – no response to tribunal’s invitation to comment – late notification of new nomination and visa applications with another sponsor in progress – bridging visa and work rights – decision under review affirmed

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

CASE
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 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 18 October 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 2 October 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. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. On 11 March 2022 the Tribunal wrote to the applicant with details of the following information:

   On 20 June 2018, the Tribunal received an application for review of the decision of the Department of Home Affairs to refuse a nomination in respect of EVOLVE BUILDING GROUP PROJECTS.  On 12 August 2021, the Tribunal accepted EVOLVE BUILDING GROUP PROJECTS withdrawal of their review in relation to the Department’s decision to refuse the nomination.  Consequently, the decision made by the Department of Home Affairs on 5 June 2018, to refuse the nomination, stands.

10. The applicant was advised that this information was relevant to the review because in deciding whether the applicant satisfies the requirements of clause 457.223(4)(a) of Schedule 2 of the Regulation, there must be a valid and approved nomination by the Minister.

11. The applicant was invited to respond by 25 March 2022.

12. The Tribunal is satisfied that the letter of 11 March 2022 was sent to the email address of the authorised representative provided by the applicant for the purposes of this review.

13. The applicant has not provided the information within the prescribed period or requested an extension of time to do so.  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 the review applicant has no entitlement to a hearing, the Tribunal has no power to permit her to appear: Hasran v MIAC [2010] FCAFC 40.

14. The Tribunal has also considered whether it should adjourn the review under subsection 363(1)(b) of the Act to allow the applicant additional time in which to provide further evidence to support her review application.

15. The Tribunal has considered whether, in the circumstances of the case the evidence that the applicant meets the requirements of the legislation is likely to be forthcoming, whether the applicant had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicant.

16. The visa application was lodged on 18 October 2017 and the delegate made its decision on 2 October 2018.  An application for review was lodged and with its acknowledgement letter the Tribunal invited the applicant to provide material or written arguments in support of her review application.

17. On 3 April 2022 the applicant’s representative did provide a late submission stating that the applicant had found a new employer willing to sponsor the applicant for a subclass 482 visa.

18. The representative said further:

    The new sponsor would like to request the Tribunal to provide the applicant with additional time until the Department of Immigration makes a decision in relation to the lodged nomination and visa.  This would allow the applicant to stay in employment until the decision is made.

19. A supporting letter from the sponsor, Black Label Development Pty Ltd was provided together with evidence of the sponsorship nomination application having been lodged on 31 March 2022.  The applicant also provided evidence that he had travelled offshore and lodged a new visa application linked to the new nomination application.

20. It is not reasonable to expect the Tribunal to await the outcome of the new sponsorship nomination application before making a decision on this visa application.  Anecdotally it appears that could take a minimum of 12 months to process with the Department. 

21. A review of the applicant’s movement records demonstrates that he was granted a bridging visa B on 8 March 2022 which presumably gives the applicant the right to work pending the outcome of the new nomination and visa applications.

22. In these circumstances and for the reasons set out in this decision record, the Tribunal considers that the applicant has had a fair opportunity to provide the relevant information and sufficient time to take steps to satisfy the regulatory criteria.  The Tribunal is not disposed to delay making a decision indefinitely.

23. Accordingly, the Tribunal has decided not to exercise its discretion to adjourn the review any further to allow the applicant more time.

24. Based on the evidence before it, the Tribunal is not satisfied at the time of its decision that the applicant is the subject of an approved nomination.

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

26. 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

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

    Michelle East
    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.