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austlii:cth/MRTA/2003/8842
appellant. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.
The Migration Review Tribunal upheld a decision to refuse a Subclass 457 work visa to Mr Keng Lim because his Australian employer, Tour Enterprises Pty Ltd, had not been approved as a business sponsor. The employer had applied for sponsorship approval but this was refused, and the employer failed to appeal that refusal in time. Without an approved sponsor, Mr Lim could not meet the visa requirements. He also failed to qualify as an 'independent executive' because he was in Australia on a visitor visa when he applied, whereas this category requires applications to be made from outside Australia. The Tribunal had no power to review the employer's sponsorship refusal because only the employer (not the visa applicant) could appeal that decision.
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CATCHWORDS: Review of visa refusal - Subclass 457 - business sponsorship not approved
DEPT FILE NUMBER: CLF2003/19323, OPF2003/003891
DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.
1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mr Keng Lim (the visa applicant), a national of Singapore, born on 25 March 1956, applied for a Temporary Business Entry (Class UC) visa on 4 April 2003. The delegate's decision to refuse to grant the visa was made on 11 April 2003.
2. The visa applicant lodged a valid application for review to the Tribunal on 8 May 2003. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.
3. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.
4. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 is not relevant as the visa applicant is seeking a visa for longer than 3 months.
5. A Subclass 457 visa can be obtained on a number of grounds. In the visa application, the visa applicant indicated that he was applying as the holder of an independent executive visa who has an established business in Australia. Included in the application was a letter from Mr Jay Yip, General Manager of Tour Enterprises Pty Ltd. On 4 April 2003 Tour Enterprises Pty Ltd applied for approval as a standard business sponsor.
6. The application made by Tour Enterprises Pty Ltd for approval as a standard business sponsor was refused in a separate decision on 11 April 2003. In the decision to refuse the visa applicant's application for a Subclass 457 visa, the delegate noted that the visa applicant had not been nominated by an employer who is an approved business sponsor.
7. There is no application for review before the Tribunal in respect of the decision not to approve the proposed employer, Tour Enterprises Pty Ltd, as a business sponsor. Such decisions are reviewable by the Tribunal but only if a valid application for review is made by the proposed employer (see sections 338 and 347 of the Act and regulation 4.02 of the Regulations). The copy of the decision on the Department file OPF2003/3891 indicates that it was sent by registered mail to Mr Jay Yip at the address specified in the application. The time limit within which Tour Enterprises Pty Ltd could apply for review of the decision to refuse approval as a standard business sponsor appears to have expired.
8. The Tribunal held a hearing on 3 December 2003 and oral evidence was given by the visa applicant, and by Mr Jay Yip. The visa applicant was represented by a registered migration agent, Mr Apichart Saengthun.
9. The visa applicant confirmed that he received the letter dated 11 April 2003 informing him that his application for a Subclass 457 visa had been refused. Mr Yip confirmed that he is the contact officer for Tour Enterprises Pty Ltd, and confirmed the company's address as specified in the application made by Tour Enterprises Pty Ltd. Mr Yip stated that he did not receive a copy of the delegate's letter advising of the refusal of the company's application for approval as a standard business sponsor, and some time later received a refund of the fee. Mr Yip provided a copy of a remittance advice dated 2 June 2003 addressed to the visa applicant. Mr Yip said that he contacted the Department after the letter to the visa applicant was received. The company had previously managed its own applications with the Department, and in this conversation he was advised that the company should seek the assistance of a migration agent as there had been changes to the legislation. Mr Yip stated that he then contacted Far East Migration Consultants, before the time for the appeal to the Tribunal had expired. The visa applicant stated that he had read the letter addressed to him, and noted the delegate's statement that he had not been nominated by an employer who is an approved business sponsor. He said that he thought at that time that there may have been problems with the company's application because of previous problems with monitoring forms.
10. Mr Yip stated that he joined Tour Enterprises Pty Ltd in January or February 2003. When he joined the company, there was a letter from the Department concerning a monitoring form. Another employee had taken long service leave, and he was not able to locate the required documents. There was a letter in February requesting the documents, and the visa applicant's Subclass 457 visa was cancelled at that time. The visa applicant was at that time in Singapore, and had no appeal rights, and he was advised to return to Australia on a visitor visa and reapply in Australia. Mr Yip said that he requested a copy of the Tribunal's first examination document, and realised that he should have checked the situation of the company for himself.
11. The visa applicant stated that he arrived in Australia on 7 March 2003 as the holder of a Subclass 676 visa. Tour Enterprises Pty Ltd did not appeal against the decision to refuse approval as a standard business sponsor, and has not reapplied for approval as a standard business sponsor. Tour Enterprises Pty Ltd is not an approved business sponsor. The activity is not the subject of a labour agreement or RHQ agreement. The visa applicant provided a written submission, setting out the circumstances of the revocation of the previous sponsorship held by Tour Enterprises Pty Ltd, and outlining the investment in the company and the company's training and employment.
12. Mr Yip said that the company has been operating for 10 years with no problems. The company has employed and trained many people, and it is only the downturn since September 11 that there have been problems. He should have been aware that the company's application had been refused, however he turned it over to a migration agent to handle on his behalf. The company is considering applying as an employer nomination.
13. Clause 457.223 sets out the criteria that must be met at the time of decision. The visa applicant indicated on his application form that he was applying as the holder of an independent executive visa who has an established business in Australia. Subclauses 457.223(7) and (7A) are relevant to this claim. Under Schedule 1 Item 1223A, an application by an applicant who proposes to develop a business activity that will be conducted by him as a principal and of benefit to Australia must be made outside Australia, and accordingly the visa applicant cannot satisfy subclause 457.223(7). At the date of application the visa applicant held a Subclass 676 visa, and he cannot meet subclause 457.223(7A). The Tribunal finds that the visa applicant's proposed employer, Tour Enterprises Pty Ltd, has not been approved as a business sponsor, and the visa applicant does not meet the requirements of subclause 457.223(4). Tour Enterprises Pty Ltd is an Australian business, and the visa applicant does not meet subclause 457.223(5). There is no evidence that the visa applicant meets the requirements of any of subclauses 457.223 (2), (3), (5), (8) or (9).
14. The visa applicant does not satisfy any of subclauses 457.223(2), (3), (4), (5), (7), (7A), (8) or (9) and accordingly does not meet clause 457.223, one of the prescribed criteria for the grant of a Subclass 457 visa. The proposed period of stay was four years, and the visa applicant does not meet the criteria for a Subclass 456 visa. The Tribunal must therefore affirm the decision under review.
15. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.
The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.