1318408 (Migration)

[2015] AATA 3020

1318408 (Migration) [2015] AATA 3020 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Atchutha Ramaraju Jampana
Mrs Shanthi Vatsawai

CASE NUMBER:  1318408

DIBP REFERENCE(S):  BCC2013/897371

MEMBER:Filip Gelev

DATE:1 July 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 01 July 2015 at 12:46pm

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 22 June 2013.

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 27 November 2013 and an application for review was made to the Tribunal on 5 December 2013.

5. The applicants appeared before the Tribunal on 23 January 2015 to give evidence and present arguments.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   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)(a).

9. Clause 457.223(4)(a) of Schedule 2 to the Regulations requires, among other things, that (1) a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act; and (2) the approval of the nomination has not ceased as provided for in regulation 2.75.

10. A nomination in relation to the applicant by Pavan & Rajani Pty Ltd had been approved, but it ceased by operation of law on 12 August 2014. 

11. The business lodged a new nomination on 21 October 2014. It was refused on 17 November 2014. Pavan & Ranjani Pty Ltd applied for a review to this Tribunal. On 23 January 2015 the Tribunal held hearings in the applicant’s case and advised him that if it were to affirm the decision of the Department of Immigration to refuse Pavan & Rajani Pty Ltd’s nomination, the Tribunal would write to the applicant pursuant to s.359A of the Act.

12. On 25 May 2015 the Tribunal affirmed the decision of the Department of Immigration not to approve the nomination lodged by Pavan & Rajani Pty Ltd.

13. On 3 June 2015 the Tribunal wrote to the applicant pursuant to s.359A of the Act and invited him to comment on the following adverse information:

    On 25 May 2015 the Tribunal affirmed the decision of the Department of Immigration not to approve the nomination lodged in relation to you [the applicant] by Pavan & Rajani Pty Ltd (Tribunal case number 1418969).

    Therefore, you are not presently the subject of an approved nomination by a standard business sponsor.

    This information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse you the grant of a subclass 457 visa. This is because one of the criteria contained within subclass 457, namely clause 457.223(4)(a) requires that at time of decision you be the subject of an approved nomination by a standard business sponsor.

    If the Tribunal were to rely on this information, the Tribunal would accordingly be required to affirm the decision of the delegate on the basis that you do not meet the criteria contained within clause 457.223(4)(a).

14. The letter advised the applicant that he had until 29 June 2015 to comment on the adverse information. On 29 June 2015 the Tribunal received a letter from Mr Jampana. The applicant accused the Department of Immigration and the Tribunal of dealing with his application without ‘any coherence or thought’, displaying a ‘casual attitude’ and that ‘the forced delay of the hearing’ which did not occur until January 2015 was ‘a deliberate attempt’ to refuse the application on the ground that the nomination is not current. The applicant implied that the Tribunal should have approved his visa application between 5 December 2013 (when he lodged the application for review) and 12 August 2014 (when the approved nomination by Pavan & Rajani Pty Ltd expired.

15. The Tribunal does not accept these submissions. The case was not constituted to the presiding member until 8 October 2014 because of the backlog of cases lodged with the Tribunal, not because the Tribunal deliberately sought to wait for the nomination approved on 12 August 2013 to expire.

16. The Tribunal held a hearing in relation to the nomination lodged on 21 October 2014 and carefully assessed all the evidence available to it before it decided to affirm the refusal of the Department of Immigration. Pavan & Rajani Pty Ltd were provided with every opportunity to demonstrate that the nominated position was a genuine one.

17. For these reasons the requirements of cl.457.223(4)(a) are not met.

18. It is not necessary for the Tribunal to consider the genuineness criterion in cl. 457.223(4)(d) which formed the basis of the delegate’s decision.

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 applicants Temporary Business Entry (Class UC) visas.

    Filip Gelev
    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 …

    (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 …