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

1. 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).

2. The visa applicant applied for the visa on 25 May 2016.

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 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.

5. 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

6. 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

7. On 16 January 2018[3] the Tribunal invited the applicant under section 359A of the Act to comment on or respond to certain information before it. In particular, this information consisted of:

   ·Departmental records relating to the applicant’s visa application;

   ·Departmental records relating to the business nomination application lodged by the applicant’s proposed sponsoring employer (Probity Investments Pty Ltd);

   ·Tribunal records that the decision not to approve the business nomination application by Probity Investments Pty Ltd was affirmed by the Tribunal on 15 January 2018; and

   ·The fact that there was no evidence that the applicant was the subject of an approved business nomination for the purposes of paragraph 457.223(4)(a).

   [3]T1, f.54-56

8. In addition, this invitation stated that the Tribunal should receive the applicant’s comments or response by 30 January 2018, or within the period allowed and as extended. This letter further informed the applicant that a failure to do so would mean that she would lose any entitlement she might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.[4]

   [4]T1, f.54-56

9. However, the Tribunal did not receive the applicant’s comments or response within the timeframe allowed for this purpose. The applicant also did not request an extension of time from the Tribunal in which to do so.

   The Loss of the Right to a Hearing before the Tribunal

10. The Tribunal notes that its invitation (dated 16 January 2018) was sent to the last relevant address for service provided by the applicant in connection with the application for review.[5] 

    [5]T1, f4 reverse

11. The Tribunal also observes that, in relation to its invitation under section 359A of the Act, as the applicant failed to provide his comments or response before the time for giving it has passed, subsections 359C(1) and (2) apply and the Tribunal may make a decision on the review without taking any further action to obtain the information.

12. Further, as subsections 359C(1) and(2) apply to the applicant, subsection 360(3) states that the applicant is not entitled to appear before the Tribunal. Under section 363A, the Tribunal does not have the power to permit a party to do something it is not entitled to do, unless a provision expressly provides otherwise. Section 360 does not provide otherwise.

13. In addition, the Courts have confirmed that where an applicant fails to respond to such a written invitation within the prescribed period, section 363A of the Act precludes the Tribunal from offering an applicant a hearing.[6] 

    [6]     See Singh v Minister for Immigration and Border Protection [2014] FCCA 1403 [32]-[39]; Yang v Minister for Immigration and Citizenship [2010] FMCA 890 at [40]; 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

14. Accordingly, as the applicant failed to give her comments or response within the prescribed period, she has lost her right to appear before the Tribunal to give evidence and present arguments relating to the application for review.

15. The Tribunal has also considered whether, in the circumstances of this case, the information that the applicant meets the requirements in paragraph 457.223(4)(a) is likely to be forthcoming and whether the applicant has had a fair opportunity to address the requirements already, and the significance of the information to the applicant.

16. The Tribunal has had regard to the fact that the visa application was refused by the Department on 9 November 2016 because the delegate concluded the applicant was not the subject of an approved nomination. The applicant submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicant has been aware for more than 14 months of the reasons for the visa application refusal.

17. 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 comments or response and sufficient time to take steps to satisfy the regulatory criteria. The Tribunal notes that it is uncertain if and when the applicant will provide information in writing as to whether she meets the requirements of paragraph 457.223(4)(a) and the Tribunal is not disposed to delaying making a decision indefinitely.

18. 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

19. 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

20. 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.

21. 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.

22. 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.

23. Accordingly, for these reasons the requirements of cl.457.223(4)(a) are not met.

    CONCLUSION

24. 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

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

    Saxon Rice
    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.