YONG FU ENTERPRISES PTY LTD (Migration)

[2019] AATA 4006

YONG FU ENTERPRISES PTY LTD (Migration) [2019] AATA 4006 (30 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  YONG FU ENTERPRISES PTY LTD

VISA APPLICANTS:  Ms Yun Lei
Mr Yanlong Qu
Master Shihao Qu

CASE NUMBER:  1705636

DIBP REFERENCE(S):  BCC2016/1804551

MEMBER:R. Skaros

DATE:30 August 2019

PLACE OF DECISION:  Sydney

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

Statement made on 30 August 2019 at 11:22am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination expired – 457 visa program repealed – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359C, 360, 363A
Migration Regulations 1994 (Cth), r 2.75; Schedule 2, cl 457.223

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 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 21 May 2016 on the basis of a nomination made by Yong Fu Enterprises, the review applicant.

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 1 March 2017 on the basis that cl.457.224 was not satisfied because the delegate found that the visa applicant had given, or caused to be given, a bogus document to the Minister in relation to the application for the visa. Consequently, the delegate found that the visa applicant does not satisfy the requirement in PC 4020(1). The delegate was also not satisfied that there were circumstances that justified the granting of the visas. 

5. During the processing of the review, the nomination in respect of the primary visa applicant ceased to be in effect. This occurred on 1 September 2017. Furthermore, on 18 March 2018, the Subclass 457 visa was repealed and replaced with the Subclass 482 (Temporary Skills Shortage) visa. The consequence of the legislative changes meant that a nomination lodged from 18 March 2018 cannot be relied upon by the visa applicant to support this application for a Subclass 457 visa. Consequently, the requirement in cl.457.223(4)(a) requiring the visa applicant to be the subject of a current approved nomination became a determinative issue in the review. 

6. On 29 July 2019 the Tribunal wrote to the review applicant pursuant to s.359A of the Act, inviting them to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to departmental records indicating that the most recent nomination in relation to the visa applicant, for the purposes of a 457 visa, was by Yong Fu Enterprises Pty Ltd which had ceased to be in effect on 1 September 2017. The Tribunal explained that the information is relevant to the requirements in cl.457.223(4)(a) which requires the visa applicant to be the subject of a current approved nomination under s.140GB of the Act.

7. The Tribunal also informed the review applicant that on 18 March 2018 the Subclass 457 visa was repealed and replaced with the Subclass 482 (Temporary Skills Shortage) visa. It noted that new nominations lodged from 18 March 2018 are for Subclass 482 visas or existing 457 visa holders and do not support an outstanding application for a Subclass 457 visa. The Tribunal explained to the review applicant that if it relied on the information before it, it may find that the visa applicant does not meet the requirements in cl.457.223(4)(a) and that in the circumstances, the decision under review may be affirmed on that basis.

8. The invitation was sent to the last address provided in connection with the review and advised that, if the comments were not provided in writing by 12 August 2019 the Tribunal may make a decision on the review without taking further steps to obtain the comments and the review applicant would lose any entitlement they might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

9. The review applicant has not provided the comments within the prescribed period and no extension has been granted. In these circumstances, s.359C applies and pursuant to s.360(3) the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit them to appear: Hasran v MIAC [2010] FCAFC 40.

10. The Tribunal is satisfied that the invitation was properly sent to the authorised recipient’s email. The email has not been returned to sender and no further contact or correspondence has been received from the review applicant regarding their intention with respect to the review.  In the circumstances, the Tribunal has decided to proceed to decision without taking further steps to obtain the comments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue at the time of decision turned on whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

13. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the visa applicant by a standard business sponsor that has not ceased.

14. The visa applicant applied for the visa on the basis of a nomination made under s.140GB of the Act, in the occupation of Corporate General Manager, by Young Fu Enterprises Pty Ltd. That nomination was approved on 1 September 2016. The nomination however ceased on 1 September 2017 by operation of r.2.75(2)(b) of the Regulation, in effect prior to 18 March 2018. Furthermore, due to the legislative changes that came into effect on 18 March 2018,[1] the review applicant is no longer able to lodge a nomination that is capable of supporting the visa applicant’s application for the Subclass 457 visa. In the circumstances, the Tribunal considered the requirement in cl.457.223(4)(a) to be a determinative issue in the review.

    [1] Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (F201800262)(the Amending Regulations).

15. The Tribunal is satisfied that the review applicant has been put on notice, through the invitation sent to them on 27 July 2019, that cl.457.223(4)(a) is a determinative issue in the review. As noted above, the review applicant did not respond to the invitation and no information has been received from them to date regarding the issues in the review. In the circumstances, the Tribunal is satisfied that it can determine this matter on the basis of the requirement in cl.457.223(4)(a).

16. As noted above, the nomination in respect of the visa applicant that was approved on 1 September 2016 has now ceased. There is no evidence before the Tribunal which suggests that the visa applicant is, at the time of this decision, the subject of an approved nomination of an occupation that is capable of supporting the application for a Subclass 457 visa. It follows that the visa applicant does not satisfy the requirements in cl.457.223(4)(a). In the circumstances, the decision under review must be affirmed.

17. As the Tribunal has found that the primary visa applicant does not meet at least one of the requirements for the grant of the visa, the Tribunal did not consider it necessary to make findings on the requirement in PIC 4020 for the purpose of cl.457.224.

18. The secondary visa applicants applied for the visas on the basis of being members of the family unit of the first named visa applicant. As the first named visa applicant does not meet the requirements for the grant of the visa, it follows that the Tribunal must also affirm the decision in respect of the secondary applicants.

19. 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

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

    R. Skaros
    Senior 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.