1403352 (Migration)

[2015] AATA 3016

1403352 (Migration) [2015] AATA 3016 (1 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Sukhwinder Kaur -
Mr Saroop Singh -

CASE NUMBER:  1403352

DIBP REFERENCE(S):  BCC2013/1048701

MEMBER:Filip Gelev

DATE:1 July 2015

PLACE OF DECISION:  Melbourne

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

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

Statement made on 01 July 2015 at 9:10am

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 27 May 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 3 February 2014 on the basis that cl.457.223(4)(d) was not met because the sponsoring business, Aussie Gold Citrus Pty Ltd ATF Domenico Scarfone Family Trust (Aussie Gold Citrus), did not require a Facilities Manager. Therefore, the position associated with the nominated occupation of Facilities Manager was not genuine.

5. The applicants appeared before the Tribunal on 20 March 2015 to give evidence and present arguments. The Tribunal also received oral evidence from her potential employer and owner of the business which sponsored her, Mr Francesco Scarfone. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 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. This visa application relates to a nomination by Domenico Scarfone Family Trust, located at Farm 230, Slopes Rd, Tharbogang NSW 2680.

11. At time of application the applicant did not provide evidence of an approved nomination or a nomination application ID. Instead, she wrote on the form, lodged with the Department more than 2 years ago, on 27 May 2013, ‘Applying For’.

12. A nomination by Aussie Gold Citrus Pty Ltd TFA Domenico Scarfone Family Trust in relation to the applicant was approved on 24 October 2013 and pursuant to r.2.75 ceased by operation of law on 24 October 2014.

13. A separate and completely unrelated nomination was lodged in relation to the applicant by an employer located in Morwell, Victoria, almost 1,800 kilometres from Griffith in New South Wales. That employer, Aggarwal Holdings (Aust) Pty Ltd (Aggarwal Holdings) has a restaurant in Morwell called Punjab Court House. At the hearing the applicant told the Tribunal that she had never worked there, but she applied for a job after seeing an advertisement. She went there and she was invited to go and cook at the premises, around June 2014, before being offered the job. The applicant handed up to the Tribunal a copy of an approved nomination, dated 8 July 2014, for the position of Cook.

14. The applicant’s representative also handed up to the Tribunal a piece of paper on which he wrote the details of an application for a visa subclass 457 relating to the Aggarwal Holdings position: file number BCC2014/1755316, reference number EGO62DYBMG, date of application 17 July 2014. 

15. The Department’s Integrated Client Services Environment (ICSE) indicates that on 4 May 2015 a 6-month sponsorship ban was imposed on Aggarwal Holdings for a breach or breaches of r.2.82 of the Regulations. As a result of the ban, the applicant no longer had an approved and current nomination with that employer. ISCE further indicates that subsequently the applicant withdrew the application for a visa subclass 457 lodged in relation to the nomination by Aggarwal Holdings.

16. However, on 26 June 2015, the Department of Immigration approved Aussie Gold Citrus’s new nomination application for the position of Facilities Manager.

17. The Tribunal notes that the Department’s policy guidelines (PAM3) do not contain separate commentary in relation to cl. 457.223(4)(d)(ii). The only entry in the guidelines relation to cl. 457.223(4)(d)(ii), at paragraph 108 of PAM3, is as follows: ‘See genuine position’. When one clicks on genuine position, it is a link to the policy guidelines in relation to r.2.72(10)(f). In other words, according to the PAM3 guidelines the genuineness requirement of r.2.72(10)(f) and cl. 457.223(4)(d)(ii) are identical.

18. The Tribunal found the case problematic. At the hearing the applicant said she was working in an aged care facility in Griffith, called Pioneer Lodge. She works in the kitchen as ‘assistant cook’. She has been working in that occupation for three years. Prior to that she had been unemployed. It would appear on the evidence that the applicant has never worked as a Facilities Manager for Aussie Gold Citrus.

19. The applicant said that there was no connection between Aggarwal Holdings (Aust) Pty Ltd and Aussie Gold Citrus. Aggarwal has a restaurant in Morwell, Victoria, called Punjab Court House. She has never worked there but she applied for a job there after seeing a job advertised. She has been to the restaurant only once when she answered the advertisement and she was invited to go and cook at the premises, around June 2014.

20. Francesco Scarfone, CEO of Aussie Gold Citrus, also gave evidence. The Tribunal explained to Mr Scarfone the 3 stage process – his business must become a standard business sponsor first, then it can nominate the applicant and finally the visa can be granted. The Tribunal asked whether he intended to put in a new nomination as the old one expired in October 2014.

21. He said that he had been approached by the visa applicant in 2013 and agreed to help her get a visa. He showed her how to do a job in the shed and some of the paperwork. However, he subsequently spoke with the Department of Immigration and ‘realised’ that he did not need a Facilities Manager.

22. The Tribunal gave the review applicant until 27 March 2015 to advise the Tribunal whether they wish to lodge a new nomination and to provide a timeframe within which they would do so. After the hearing, the applicant advised the Tribunal that a new nomination will be lodged.

23. As already noted, on 25 June 2015, the Department of Immigration approved the new nomination lodged in April 2015.

24. For these reasons, as the Department of Immigration was satisfied that Aussie Gold Citrus does require a Facilities Manager, the requirements of cl.457.223(4)(d) are met.

25. 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

26. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

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

    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

    (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.