YI (Migration)

[2021] AATA 530

YI (Migration) [2021] AATA 530 (3 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms YANXIA YI
Mr JUNYI ZHOU

CASE NUMBER:  1815839

DIBP REFERENCE(S):  BCC2018/1213603

MEMBER:Jennifer Cripps Watts

DATE:3 March 2021

PLACE OF DECISION:  Sydney

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

Statement made on 3 March 2021 at 1:40pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application affirmed on review – no response to tribunal’s invitation to comment – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 140GB, 359A

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 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 13 March 2018.

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 18 May 2018 on the basis that cl.457.223(4)(a) was not met because the applicant for the Subclass 457 visa that is the subject of this review was found not to be the subject of an approved nomination for an occupation, relating to the applicant, under s.140GB of the Act.

5. The applicants provided the Tribunal with a copy of the delegate’s decision when the review application was lodged on 30 May 2018. 

6. On 12 February 2021, the Tribunal sent the applicants an invitation to attend a scheduled hearing, by phone, on 10 March 2021.

7. When exercising its discretion to have the hearing by phone, in the circumstances of this case and given the possibility that restrictions on people’s movements being in place at any given time during the COVID-19 pandemic, the Tribunal decided to hold the hearing remotely.  The issue on the review is the same substantive issue as was before the delegate and the Tribunal was satisfied that having a phone hearing would not prejudice the applicant’s right to a fair hearing.

8. On 16 February 2021, observing the requirements of s.359A of the Act, the Tribunal wrote to the applicant informing her of adverse information that would be the reason, or a part of the reason, for affirming the decision under review (s.359A letter).  The applicant was informed that if no response was received, she would lose her right to attend a hearing to give oral evidence, the hearing scheduled on 10 March 2021 would be cancelled, and the Tribunal would proceed to make a decision on the review without taking any further action to obtain her views on the information (particularised in the s.359A letter).

9. The date for response was specified in the s.359A letter as 2 March 2021.  The applicant was also informed in the s.359A letter that she could request an extension of time to provide a response.  The Tribunal received no response or request for an extension of time by the specified date and has proceeded to make a decision on the evidence before it.

10. The applicants were represented by registered migration agent, Mr Gang Ren, and Tribunal correspondence was sent to Mr Ren as the applicants’ authorised recipient.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor.

13. The Tribunal sent the applicant the s.359A letter mentioned above, informing her of adverse information which would be the reason or a part of the reason for affirming the decision to refuse the visa.  The information that was given to the applicant was that it appeared she had no approved nomination relating to her Subclass 457 visa application and therefore would not be able to meet the requirements of cl.457.223(4)(a), the same determinative issue on which the visa was refused.

14. Information included in the s.359A letter was, in summary and relevantly, this:

    ·On 13 March 2018, the applicants lodged Subclass 457 visa applications

    ·On 18 May 2018, the visa applications were refused because the prospective sponsoring employer, Li Zhihong, did not have an approved nomination of an occupation relating to the applicant, because their nomination had been refused

    ·On 8 May 2018, Li Zhihong lodged an application with the Tribunal for review of the Minister’s decision to refuse their nomination

    ·On 2 December 2020, the Tribunal (differently constituted) affirmed the decision to refuse the nomination, meaning that the decision made by the Minister to refuse the nomination remained unchanged.

    ·There does not appear to be information that the applicant is currently the subject of an approved nomination for an occupation relating to her.

15. The Tribunal is satisfied, at the time of this decision, that Departmental records indicate there is no approved nomination of an occupation relating to the applicant.

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

    Secondary applicant

16. As the Tribunal has affirmed the decision to refuse the applicant’s visa, the decision to refuse the visa of the secondary applicant, Mr Junyi Zhou, must also be affirmed.

    Conclusion

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 applicants  Temporary Business Entry (Class UC) visas.

    Jennifer Cripps Watts

    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.