1406266 (Migration)

[2015] AATA 3493

1406266 (Migration) [2015] AATA 3493 (20 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ka Yan Chu

CASE NUMBER:  1406266

DIBP REFERENCE(S):  BCC2013/1970910

MEMBER:Dione Dimitriadis

DATE:20 October 2015

PLACE OF DECISION:  Sydney

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

Statement made on 20 October 2015 at 3:49pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 November 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 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 14 March 2014 on the basis that cl.457.223(4)(a) was not met because there was not an approved nomination of an occupation in relation to the applicant by a standard business sponsor.

5. The applicant appeared by video conference in Canberra, Australian Capital Territory, before the Tribunal in Sydney, New South Wales, on 19 October 2015 to give evidence and present arguments.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a).

8. The applicant applied for the visa on 29 November 2013 on the basis of her proposed employment with her sponsoring employer, York (Canberra) Pty Ltd, in the occupation of Hotel or Motel Manager 141311. 

9. On 27 November 2013 York (Canberra) Pty Ltd (the sponsor) applied to the Minister for Immigration for approval as a standard business sponsor.

10. On 5 February 2014 the delegate decided not to approve the application by the sponsor for approval as a standard business sponsor.

11. York (Canberra) Pty Ltd applied to the Tribunal on 25 February 2014 for review of the delegate’s decision.

12. On 14 March 2014 the delegate refused to grant the visa to the applicant. The applicant applied for review with the Tribunal on 1 April 2014 and provided a copy of the delegate’s decision record.  

13. On 6 May 2015 the Tribunal (differently constituted) set aside the decision not to approve York (Canberra) Pty Ltd as a standard business sponsor and substituted a decision that York (Canberra) Pty Ltd is a standard business sponsor.

14. On 7 May 2015 the Tribunal wrote to the applicant and informed her that it had approved York (Canberra) Pty Ltd as a standard business sponsor on 6 May 2015. The Tribunal invited the applicant to provide evidence that her sponsor has sought approval of the nomination of an occupation in relation to her from the Department of Immigration (the Department) and to provide the outcome of that application as soon as it is known to her. The Tribunal requested that the applicant provide evidence by 8 June 2015 of the lodgement with the Department of the application.

15. On 5 June 2015 the Tribunal received an email from the applicant requesting for an extension of time. The Tribunal agreed to an extension of time until 6 July 2015 and informed the applicant by email on 9 June 2015.

16. On 5 July 2015 the Tribunal received an email from the applicant who stated that her employer, York (Canberra) Pty Ltd, lodged the application for approval of the nomination on 30 June 2015 and they are awaiting the result from the Department. The applicant provided a copy of the receipt dated 30 June 2015 from the Department for a nomination application. The applicant stated that she will send an email to the Tribunal when the Department makes a decision on the nomination.

17. On 20 July 2015 the Tribunal wrote to the applicant and invited her to a hearing on 19 October 2015. The Tribunal informed the applicant that at the hearing the Tribunal will discuss issues including whether there is a current approved nomination of an occupation by an approved standard business sponsor in respect of the applicant as required by cl.457.223(4)(a). The Tribunal informed the applicant that she has provided information to the Tribunal that an application for approval of a nomination was recently submitted to the Department and the Tribunal requested that the applicant provide the following information at least 7 days before her hearing:  

    ·Information that was provided to the Department in support of the application by the sponsoring employer for approval of the nomination, including the relevant nomination application form and all documentation submitted in support of the nomination application (if available).

    ·Relevant documents in support of the application. 

18. Information in the Department’s ICSE records is that the nomination application by the sponsor, York (Canberra) Pty Ltd, was refused on 14 July 2015.

    The Tribunal hearing

19. At the hearing, the Tribunal informed the applicant of the requirements of cl.457.223(4)(a).

20. The applicant gave evidence that there is no current approved nomination in relation to her. She stopped working for the sponsor at the end of June 2015. The business was closing down. The applicant stated that the sponsor withdrew the nomination application. The Tribunal informed the applicant that the Department’s records show that the nomination was refused on 14 July 2015.

21. The applicant stated that the sponsor sponsored her two years ago and the application for approval of the sponsorship was refused by the Department and the sponsor applied for review with the Tribunal. After 18 months the sponsorship was approved. The applicant stated that the nomination application was lodged by the sponsor, but the sponsor then withdrew it because the sponsor was closing down. The applicant stated that there is an email withdrawing the nomination application.

22. The applicant stated that she is not working at the moment. She has been offered a job as an assistant in the front office by Whitsunday Apartments Hamilton Island. The position is Guest Service Agent. She has not been nominated by this business yet. The applicant stated that they will submit a nomination after the hearing because they do not know what is happening with her case.

23. The Tribunal brought to the applicant's attention that it has not received anything from the new company that they are going to nominate her or that they are a standard business sponsor.

24. The applicant stated that she will send documents to the Tribunal. She has a letter from the new employer offering her a position, a letter from a previous employer and a letter from the sponsor. The applicant stated that she does not want the Tribunal or the Department to think this is a dodgy case. The sponsor closed down. No migration agent was able to help her.

25. The applicant requested that the Tribunal allow time for a nomination application to be lodged. The applicant stated that the business, Whitsunday Apartments Hamilton Island, had a lawyer but was waiting for the hearing before they applied for approval of the nomination.

26. The Tribunal carefully considered whether to allow time for the applicant to obtain a nomination from a different employer. In the hearing invitation, the applicant was asked to provide information in support of the application by the sponsoring employer for approval of the nomination. The applicant did not provide any further documentary evidence to the Tribunal before the hearing. She stated at the hearing that she has an offer from Whitsunday Apartments Hamilton Island in the occupation of Guest Service Agent.

27. The visa application was lodged on 29 November 2013 and the applicant has had almost two years to satisfy the requirements for the grant of a Subclass 457 visa. The Tribunal has considered the evidence that it took 18 months for the approval of the sponsor, York (Canberra) Pty Ltd, as a standard business sponsor. However, the applicant left her job with that sponsor at the end of June 2015 and she has had about three and a half months to find an employer willing to sponsor her. Although the applicant stated that she has found an employer, no evidence has been provided that the employer is a standard business sponsor or that a nomination has been lodged. The Tribunal considered that the applicant has had sufficient time to find a business to sponsor her and to nominate an occupation in relation to her.  The Tribunal did not agree to allow the applicant time for the new employer to lodge a nomination application and for the nomination to be approved.

28. The Tribunal proceeded under s.359AA of the Act. The Tribunal informed the applicant that it was going to give her particulars of information which the Tribunal considers would, subject to her comments or response, be the reason, or a part of the reason, for affirming the decision under review. The Tribunal informed the applicant that the information is as follows:

    ·On 27 November 2013 York (Canberra) Pty Ltd applied to the Minister for Immigration and Border Protection for approval as a standard business sponsor.

    ·On 5 February 2014 the delegate decided not to approve the application for approval as a standard business sponsor.

    ·York (Canberra) Pty Ltd applied to the Tribunal on 25 February 2014 for review of the delegate’s decision.

    ·On 6 May 2015 the Tribunal (differently constituted) set aside the decision not to approve York (Canberra) Pty Ltd as a standard business sponsor and substituted a decision that York (Canberra) Pty Ltd is a standard business sponsor.

    ·Information in the Department’s records is that the sponsor applied to the Department on 30 June 2015 for approval of a nomination of an occupation in relation to the applicant. 

    ·Information in the Department’s records indicates that the nomination was refused by the Department on 14 July 2015.

    ·The information in the Department’s records is that the applicant is not nominated by an approved standard business sponsor.

29. The Tribunal informed the applicant that the information is relevant to the review because it is a requirement of cl.457.223(4)(a) that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act; that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and the approval of the nomination has not ceased as provided for in r.2.75. The Tribunal informed the applicant that if the Tribunal finds that there is not a current approved nomination, the Tribunal will find that she does not satisfy cl.457.223(4)(a) which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and that the nomination has not ceased. The Tribunal informed the applicant that if the Tribunal finds that she does not meet cl.457.223(4)(a) it will find that she does not meet the requirements for the grant of a Subclass 457 visa and the Tribunal will affirm the decision under review.

30. The applicant stated that she understood the information and understood the relevance of the information. The applicant did not wish to seek further time to respond to or comment on the information. The applicant did not wish to comment on or respond to the information.  

31. On 19 October 2015 the Tribunal received an email from the applicant who stated that she recently was offered a job with Whitsunday Apartments Hamilton Island and they are “equipped to do the sponsorship.”  The applicant requested that the Tribunal give her new employer and the applicant time to “get all the document (sic) done”.

32. On 19 October 2015 the Tribunal received an employment offer dated 19 October 2015 to the applicant from Whitsunday Apartments Hamilton Island. The position is for a Guest Service Agent with a probation period of six months. The position is to commence on 1 November 2015. The Tribunal received an email stating that Whitsunday Apartments Hamilton Island has previously sponsored staff on a Subclass 119 Regional Sponsored Migration Scheme visa. They wish to employ the applicant as they have been trying to find a Guest Service Agent who is fluent in Mandarin and Cantonese and the applicant meets the criteria. 

33. The Tribunal carefully considered the request for further time but did not agree to it. The applicant did not provide evidence that Whitsunday Apartments Hamilton Island is an approved standard business sponsor. The applicant has not begun to work in the occupation and the position has a probation period of six months. The proposed employer has not lodged the nomination application. Although the applicant informed the Tribunal that the sponsor, York (Canberra) Pty Ltd, has closed down its business, the applicant stopped working for the sponsor at the end of June 2015.  The Tribunal considers that the applicant has had sufficient time to find a business to nominate an occupation in relation to her. 

34. The Tribunal wrote to the applicant on 20 October 2015 and informed her that it did not agree to allow more time for an approved nomination.

    Requirement for an approved nomination

35. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and the approval of the nomination has not ceased. (Clause 457.223(4)(a) is attached to the decision.)

36. The Tribunal informed the applicant in the hearing invitation that the issue before the Tribunal includes whether there is a current approved nomination of an occupation by a standard business sponsor in respect of the applicant. The Tribunal informed the applicant at the hearing of the requirements of cl.457.223(4)(a).  

37. York (Canberra) Pty Ltd was approved as a standard business sponsor on 6 May 2015. On 30 June 2015 York (Canberra) Pty Ltd applied to the Department for approval of a nomination. On 14 July 2015 the nomination was refused. The applicant claimed that the nomination application was withdrawn. However, the Department’s records indicate that the nomination was refused. Whether the nomination was refused or the nomination application was withdrawn, the evidence before the Tribunal is that there is not an approved nomination of an occupation by a standard business sponsor in relation to the applicant.

38. The applicant confirmed at the hearing that there is not an approved nomination of an occupation by a standard business sponsor in relation to the applicant. Although the applicant claimed that there is another employer that is willing to sponsor and nominate her, there is not an approved nomination of an occupation by a standard business sponsor in relation to the applicant at the time of the Tribunal’s decision.

39. There is no evidence before the Tribunal that there is an approved nomination in respect of the applicant by a standard business sponsor and the approval of the nomination has not ceased. 

40. There is no evidence before the Tribunal, at the time of decision, that there is a current approved nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act. The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a)(i). There is no evidence that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved. The Tribunal finds that the applicant does not satisfy cl.457.223(4)(a)(ii). 

41. Accordingly the applicant does not satisfy cl.457.223(4)(a). As the applicant does not meet cl.457.223(4)(a), she is not entitled to the grant of a Subclass 457 visa.  

42. 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

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

    Dione Dimitriadis
    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;

    .....