1419311 (Migration)

[2016] AATA 3410

1419311 (Migration) [2016] AATA 3410 (19 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JUDE RUSEL SADEEPA SAPARAMADU PONNAVILA VIDANELAGE DON

CASE NUMBER:  1419311

DIBP REFERENCE(S):  bcc2014/1973680

MEMBER:Antonio Dronjic

DATE OF DECISION:  19 February 2016

PLACE OF DECISION:  Melbourne

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

·cl.457.223(4) (da) and (e) of Schedule 2 to the Regulations.

Statement made on 19 February 2016 at 11:00am

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 12 August 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 7 November 2014 on the basis that that cl.457.223 (4)(da) was not met because the delegate was not satisfied that the applicant have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation of an ICT Business Analyst (ANZSCO261111).

5. The applicant applied to the Tribunal on 26 November 2014 for review of the delegate’s decision. With the review application, the applicant provided a copy of the primary decision record.

6. On 16 November 2015, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act  inviting the applicant to provide information in writing that demonstrate that the applicant meets the requirements of cl.457.223(4) (a) or at the very least, evidence that his prospective employer lodged a new nomination application with the department. In addition,   the tribunal invited the applicant to provide information in writing that demonstrate that the applicant meets the requirements of cl.457.223(4) (da) and (e) to the Regulations.

7. On 30 November 2015, the applicant’s representative submitted:

   ·DIBP acknowledgment letter dated 30 November 2015 as evidence that on the same day the applicant’s prospective employer lodged a new nomination application with the department;

   ·IELTS test results for the applicant evidencing the overall score of 7.5;

   ·Copy Diploma in Information Technology from Sri Lanka awarded to the applicant on 2 February 2009;

   ·Skill…