1413443 (Migration)

[2015] AATA 3785

1413443 (Migration) [2015] AATA 3785 (3 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Choi Fei Chan

CASE NUMBER:  1413443

DIBP REFERENCE(S):  BCC2014/916833

MEMBER:Steve Georgiadis

DATE:3 December 2015

PLACE OF DECISION:  Adelaide

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

Statement made on 03 December 2015 at 10:43am

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 4 April 2014.

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 visa on 16 July 2014 on the basis that cl.457.223(4)(a) was not met as the nominator employer’s business activity is not subject to an approved business nomination.

5. The applicant appeared before the Tribunal on 11 June 2015 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Ross Tamburri, Managing Director for the nominating employer, the Trustee for AFL Unit Trust (trading as Devine Cellars Inglewood) in the related matter, case-file number 1410861.  The related matters were heard together.

6. The applicant was represented in relation to the review by his 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) for the grant of the Temporary Business Entry (Class UC) visa.

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.  Mr Choi Fei Chan had been nominated for the occupation of Customer Service Manager (ANZSCO 149212) with the sponsor employer, the Trustee for AFL Unit Trust (trading as Devine Cellars Inglewood).

10. The Tribunal has considered whether the nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act and whether the nomination was made by a person who was a standard business sponsor.

11. On 2 December 2015 the Tribunal decided to affirm the decision not to approve the nomination for the occupation as it was not satisfied that the sponsor employer met all applicable criteria for the nomination to be approved.

12. The Tribunal put to the applicant at the hearing that without an approved nomination of an occupation in relation to him, he would not meet criteria to satisfy cl.457.223(4)(a) for the grant of the visa and that the application would, on that basis, be unsuccessful. The applicant confirmed to the Tribunal that he understands and accepts that, in such circumstances, it would not be open for the visa application to be successful as this is one of the required criteria.

13. Having considered the available evidence before it, the Tribunal is satisfied that the position of the occupation of Customer Service Manager (ANZSCO 149212) is the subject of the relevant nomination application. The Tribunal has no evidence before it that the nomination is approved so as to satisfy the requirement of cl.457.223(4)(a).

14. Given the above, the Tribunal finds there is not an approved nomination in respect of the applicant.

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

16. 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

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

    Steve Georgiadis
    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.