Yuen (Migration) - [2018] AATA 132

Yuen (Migration) [2018] AATA 132 (31 January 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Miss Lai Ying Yuen
CASE NUMBER:  1618941
DIBP REFERENCE(S):  BCC2016/1836962
MEMBER:Saxon Rice
DATE:31 January 2018
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 31 January 2018 at 2:03pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – No approved nomination – Applicant failed to provide comments to the Tribunal – Out of time
LEGISLATION
Migration Act 1958, ss 65, 359A, 359C, 360, 363, 363A,
Migration Regulations 1994 Schedule 2 cls .457.223
CASES
Hasran v Minister for Immigration and Citizenship [2010] FCAFC 40
M v Minister for Immigration and Multicultural Affairs (2006) 155 FCR 333
Minister for Immigration and Multicultural Affairs v Sun (2005) 146 FCR 498
Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]
Yang v Minister for Immigration and Citizenship [2010] FMCA 890
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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 25 May 2016.
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.
The delegate refused to grant the visa on 9 November 2016 on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) because her proposed employer did not have an approved nomination in place for her.
The applicant lodged an application for review with the Tribunal on 11 November 2016, and a copy of the primary decision was included with the application for review.[1] The Tribunal has before it the departmental file[2] relating to the applicant. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
[1]T1, f.5-6
[2]D1 - Departmental file, BCC2016/1836962, folio numbered 1-193
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
The Tribunal Invitation to Comment on or Respond to Information
On 16 January 2018[3] the Tribunal invited the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Yuen (Migration)

Details

AGLC: Yuen (Migration) [2018] AATA 132
Case: [2018] AATA 132
Decision Date: 31 January 2018

CaseChat Overview and Summary

This matter concerned an application for a Temporary Business Entry (Class UC) visa, subclass 457 (Temporary Work (Skilled)), brought before the Tribunal by the applicant. The central dispute revolved around whether the applicant met the requirements for an approved nomination under the standard business sponsor stream. The Tribunal, presided over by Saxon Rice, was required to determine if the applicant had provided sufficient evidence to satisfy this criterion.

The primary legal issue before the Tribunal was whether the applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994. This clause mandates that an applicant must have an approved nomination of an occupation by a standard business sponsor, which has not ceased. The Tribunal also considered whether to exercise its discretion to grant a further adjournment to allow the applicant to provide this evidence.

The Tribunal reasoned that following its decision not to approve the business nomination of Probity Investments Pty Ltd, there was no evidence before it demonstrating that the applicant was the subject of an approved nomination by a standard business sponsor. Despite being invited to provide comments or responses, the applicant had failed to submit any information indicating an approved nomination or any pending nomination applications. Consequently, the Tribunal concluded that the requirements of clause 457.223(4)(a) were not met.

The Tribunal affirmed the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa, finding that the requirements for the standard business sponsor stream had not been satisfied. No claims were made or evidence provided regarding other streams within clause 457.223, leading to the conclusion that the applicant could not satisfy the specific criteria for those streams either.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Accordingly, the Tribunal has decided not to exercise its discretion under subsection 363(1)(b) of the Act to adjourn the review any further to allow the applicant more time in which to demonstrate that she meets the requirements of paragraph 457.223(4)(a).CONSIDERATION OF CLAIMS AND EVIDENCE 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 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. As outlined in the Tribunal’s invitation to the applicant to comment or respond to information dated 16 January 2018, following the Tribunal’s affirmation not to approve the business nomination of Probity Investments Pty Ltd on 15 January 2018, there is no evidence before the Tribunal to indicate that the applicant is the subject of an approved nomination of an occupation relating to her by a standard business sponsor that has not ceased. The applicant has not provided the Tribunal with any information to indicate that she is the subject of an approved nomination or that she has any nomination applications pending before the department despite being specifically invited to do so. Accordingly, for these reasons the requirements of cl.457.223(4)(a) are not met.CONCLUSION 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 The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.Saxon RiceMemberATTACHMENT - 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.