1414058 (Migration)

[2015] AATA 3577

1414058 (Migration) [2015] AATA 3577 (29 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Waves Imports International

VISA APPLICANTS:  Mrs Amandeep Kaur
Mr Amit Kandhol

CASE NUMBER:  1414058

DIBP REFERENCE(S):  BCC2013/2104964

MEMBER:Karen Synon

DATE:29 October 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 29 October 2015 at 12:48pm

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 16 December 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 18 July 2014 on the basis that cl.457.223(4)(d) was not met because he was not satisfied that the position of Graphic Pre-Press was genuine.

5. The review applicant applied for review of the primary decision on 15 August 2014 and provided a copy of the department’s decision to the Tribunal.

6. Mr Najeed Kamil appeared before the Tribunal on 26 October, on behalf of the review applicant, Waves Imports International, to give evidence and present arguments.  The visa applicant, Ms Amandeep Kaur was present throughout the hearing but did not give evidence. An interpreter in the Hindi, Punjabi and English languages was requested and present throughout the hearing but his services were not required.

7. The review applicant was represented in relation to the review by its registered migration agent who was present throughout the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issues in the present case are whether the primary visa applicant meets the requirements of cl.457.223(4)[a) and cl.457.223(4)(a).

   Requirement for an approved nomination

10. 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.

11. On 4 August 2015 the Tribunal wrote to the applicant in accordance with s.359A of the Act, inviting it to provide comments, in writing, on information that it considered would be part of the reason for affirming the decision under review.  In particular, the Tribunal raised information indicating that the nomination relating to the primary visa applicant (the visa applicant) had expired on 30 April 2014, which meant that the visa applicant no longer met cl.457.223(4)(a).

12. In response the following relevant comments were provided in writing:

    That my business lodged an application for approval of Standard Business Sponsorship on 10/09/2012 before the Department of Immigration and Border Protection, which was approved on 16 October 2012 valid till 16 October 2015;

    That having approved SBS I successfully nominated Amandeep Kaur (the visa applicant herein) on 30 April 2013;

    That on 18 July 2014 the visa application of the nominee was refused by the delegate of the Minister for Immigration and Border protection on the basis of non-satisfaction of subparagraph 457.223(4)(d)(ii), in other words the delegate did not considered (sic) the approved nomination and the associated position of Graphic Pre-press Trades Worker with the nominated occupation to be genuine;

    That based on merits I made a review application against the decision of the Minister for Immigration and Border Protection in relation to refusal application for a Temporary Business Entry (Class UC) Temporary Work (Skilled) (subclass 457) visa;

    That as per the department policy the copy of which I have attached along with my submission states that, Period of Approval of nomination may remain in effect for 3 months after on which the person’s approval as a standard business sponsor ceases.  A 457 can be granted during this 3 month period.  In the matter under your consideration the Standard Business Sponsorship ceases 16 October 2015, therefore the previous approved nomination in relation (sic) the visa application which is the subject matter of the merits review should may (sic) still be valid;

    That nothing is adverse my business as yet and another subclass of 457 visa holder(s) is working within in (sic) my business on the same position of Graphic Pre-press Trades Worker.  The position associated with the nominated occupation is genuine, as the same business has recruited another overseas worker on similar associated position with the nominated occupation.  My one of the (sic) ground of appeal is that there should not be two approaches to a single position within the same business;

    That pertinently r.275(2)(b) of the Migration Regulations 1994 (Cth) should be read in correlation to r.275(2)(d) of the Migration Regulations 1994 (Cth), which specifies that if the approval of nomination is given to a standard business sponsor - 3 months after the day on which the person’s approval as standard business sponsor ceases;

    That if in material particular the nomination relating to the visa applicant ceased by operation of law on 30 April 2014, why would have the delegate of the Minister for Immigration and Border Protection have considered the nomination limitation time as per r.2.75(2)(b) of the Migration Regulations 1994 (Cth) or considered the department policy whilst deciding the visa application almost 3 months i.e.: one 18 July 2014;

    That technically the visa application was refused after the specified day i.e. 30 April 2014, the decision record stated the decision reviewable and so was the lodgment of the merits review application.  In case the cessation date was to be taken as a limitation period the very purpose of merits review would be jeopardized.

13. On 20 August 2015, when inviting the applicant to the hearing on 26 October 2015, the Tribunal relevantly advised (in bold text) in the hearing invitation:

    The Tribunal has considered your response to its letter issued in accordance with s.359A however notes you have not provided any evidence of an approved nomination as required by Regulation 2.75(2)(b).

    This hearing has been scheduled well in advance in order to provide you with time to lodge and receive a decision on a new nomination should you wish to do so.

    If an approved nomination is not in force at the time of the Tribunal hearing, no additional time will be provided for you to attend to this after the hearing and at the hearing the Tribunal will receive evidence and arguments in relation to whether the visa applicant is the subject of an approved nomination: cl.457.223(4)(a).

    If, by the time of the hearing, the visa applicant is the subject of an approved nomination, the Tribunal will receive evidence and arguments in relation to whether the visa applicant meets cl.457.223(4)(d); that is whether the applicant’s intention to perform the occupation is genuine and whether the position associated with the nominated occupation is genuine.

    If the Tribunal proceeds to take evidence and arguments in relation to cl.457.223(4)(d), it requests that the primary visa applicant attend the hearing to give witness evidence.

    We request that any additional documents or information that you may wish to rely on during the hearing be provided to us by 19 October 2015.

14. No documents or submissions were received by 19 October 2015 as requested however, at the commencement of the hearing, 2 documents, which the review applicant said supported the genuineness [of the position] were provided.  These are a list of customers and a copy of an invoice from ‘Seek’, dated 23 February 2015, in relation to the placing of an advertisement for a Pre-press Operator.

15. During the hearing the review applicant agreed that the visa applicant is not the subject of a current nomination.  He said they had applied again but this had also been refused.  He did not know when they had applied but it had been refused recently.  Mr Kamil commented that when the visa was refused, his nomination was successful and he has evidence to show that it (the position) is genuine.  The Tribunal explained that, as detailed to him in the hearing invitation letter, without a valid nomination the visa applicant could not meet the requirements of cl.457.223(4) and that the issue of the genuineness of the position is a secondary issue to whether there is a valid nomination in respect of the visa applicant.  The Tribunal invited any of the parties in the room including the review applicant, the visa applicant and the representative to make any additional comments but none did so.

16. Noting at the hearing that the Tribunal had incorrectly provided information in its 359A letter that the nomination relating to the visa applicant had expired on 30 April 2014 and that in fact it had expired on 19 June 2014, it provided the correct information, in accordance with the provisions of s.359AA.  The Tribunal advised that having regard to information contained in the Department’s ICSE records, the nomination relating to the visa applicant was approved on 19 June 2013 and under the terms of r.2.75 the nomination creased by operation of law on 19 June 2014.  Offered the opportunity to respond immediately, an adjournment to consult with his representative or to respond in writing after the hearing, the review applicant elected to respond in writing.  It was agreed that a response would be provided by 5pm Wednesday 28 October 2015.

17. No response has been received within the agreed time frame.

18. As detailed in an invitation provided to the applicant in accordance with the provisions of s.359AA and as explained at the hearing, the Tribunal has had regard to information contained on Departmental records indicating that the visa applicant is not presently the subject of an approved nomination by a standard business sponsor.

19. In particular, records contained on the Department's Integrated Client Service Environment (ICSE) database indicate that a previous nomination relating to the applicant was approved on 16 June 2013 and, under the terms of Migration Regulation 2.75, this nomination relating to the visa applicant ceased by operation of law on 16 June 2014.

20. The Tribunal notes as reasonable the review applicant’s submission that the delegate made his decision on 18 July 2014, that is after the nomination had expired, on the issue of genuineness in cl.457.223(4)(d) and that in doing so and advising the review applicant of its review rights, “the very purpose of merits review would be jeopardized.  The Tribunal does not know why the delegate did not refuse the visa on the grounds of no valid nomination however notes that regardless of the grounds on which the visa was refused, it was always open to the review applicant to lodge an application for review and seek to have another valid nomination at the time of the Tribunal’s decision.

21. The Tribunal has also considered the other legal arguments made by the review applicant in his submission dated 18 August 2015 however does not agree with the legal contention that the nomination is valid until three months after the expiry of the standard business sponsorship.

22. The Tribunal rather considers that by operation of Migration Regulation 2.75 the approval of the nomination ceases on the earliest (Tribunal’s emphasis) of the events listed in r.2.75(2)(a)-(f). In this case r.275(2)(b) states that the nominations ceases “12 months after the day on which the nomination is approved “.

23. As the review applicant has provided evidence that there is no current nomination in relation to the visa applicant, the requirements of cl.457.223(4)(a) are not met.

24. As the visa applicant does not meet the requirements of cl.457.223(4)(a) the visa applicant does not satisfy cl.457.223(4) in its entirety and so it is not necessary for the Tribunal to also consider if the visa applicant satisfies the requirements of cl.457.223(4)(d).

25. As the first named visa applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second named applicant also does not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

26. 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

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

    Karen Synon
    Member