1305612 (Migration)

[2016] AATA 3412

1305612 (Migration) [2016] AATA 3412 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thuy Lan Dang

CASE NUMBER:  1305612

DIBP REFERENCE(S):  BCC2013/317318

MEMBER:Alison Mercer

DATE:19 February 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(d) of Schedule 2 to the Regulations.

Statement made on 19 February 2016 at 1:09pm

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 27 February 2013.

3. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. 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 4 April 2013 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the nominated position of Corporate Services Manager was a genuine position within the nominating employer’s business (Evo Construction Pty Ltd).

5. The applicant appeared before the Tribunal on 28 January 2016 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Linh Nguyen, the director of the nominating employer.  The Tribunal also took into account evidence provided by both the applicant and Ms Nguyen at a related hearing held on the same date in relation to the review of the decision to refuse the nomination of the occupation of Corporate Services Manager made by Evo Construction Pty Ltd (MRT 14 17986).

6. The applicant was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(d).

   Genuine intention

9. Clause 457.223(4)(d) requires that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.

10. As noted above, the delegate considered that the position associated with the nominated occupation was not genuine, having regard to the size and scope of the nominating employer’s business.

11. Since that time, the Tribunal has reviewed and set aside a related decision by the Department to refuse to approve a nomination by Evo Construction Pty Ltd of the occupation of Corporate Services Manager in relation to the applicant.  The Tribunal notes that the Department’s decision to refuse the nomination was made on 15 October 2014, and was made on the grounds that the delegate was not satisfied that the nominator met r.2.72(10)(f) of the Regulations as the delegate did not accept that the position associated with the nominated occupation was genuine.

12. On 8 February 2016, the Tribunal (as presently constituted) set that decision aside in its decision MRT 1417986.  In that decision, the Tribunal made findings at paragraphs 68 to 80 that the position associated with the nominated occupation is genuine.  In view of the identical wording and considerations involved in its assessment of cl.457.223(4)(d)(ii), the Tribunal adopts its own reasoning from the specified paragraphs of MRT 1417986 and finds that, in relation to this case, that the position associated with the nominated occupation is genuine, and that the applicant thus meets cl.457.223(4)(d)(ii).

13. Having had the benefit of taking evidence from the applicant and her employer, Ms Nguyen, regarding the fact that the applicant has been employed by Evo Construction Pty Ltd since 2010, and the documentary evidence provided of the applicant’s Australian qualifications (Diploma of Business and Bachelor of Business (International Business), the Tribunal is satisfied that the applicant’s intention to perform the occupation is genuine.  The Tribunal is therefore satisfied that she meets cl.457.223(4)(d)(i).

14. Given the above, the Tribunal finds that the applicant satisfies cl.457.223(4) as a whole.

15. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

16. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(d) of Schedule 2 to the Regulations.

    Alison Mercer
    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

    (ea)if:

    (i)    the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

    (ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

    the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant; and

    (iii)    at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

    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.