1501829 (Migration)

[2016] AATA 3944

1501829 (Migration) [2016] AATA 3944 (31 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Gloria Edelmira Bayer Hernandez
Mr Jose Pacifico Rivera Nino

Mr Jose Luis Rivera Bayer
Mr John Alexander Rivera Bayer

CASE NUMBER:  1501829

DIBP REFERENCE(S):  BCC2014/1846058

MEMBER:Michael Cooke

DATE:31 May 2016

PLACE OF DECISION:  Sydney

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

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

The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the second named visa applicants meet the following criterion for a Subclass 457 visa:

• cl.457.324(1) of Schedule 2 to the Regulations.

The Tribunal does not have jurisdiction in the matter of Mr Jose Luis Rivera Bayer.

Statement made on 31 May 2016 at 3:19pm

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 29 July 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 visas on 23 January 2015 on the basis that cl.457.223(4)(d) was not met because the delegate was satisfied that neither the position nominated nor the intention to perform the occupation was genuine.

5. The applicants appeared before the Tribunal on 29 March 2016 to give evidence and present arguments. The Tribunal also received oral evidence from the secondary visa applicant - John Rivera.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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.

   Findings and reasons relating to whether the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine.

10. The Tribunal has had an extensive discussion with the parties in the hearing regarding the conduct of their business and the roles performed by the parties in the business. The primary visa applicant is a highly qualified woman with extensive experience of contract administration bookkeeping etc in her native Colombia and in Australia. She is only a number of units shy of finishing her Bachelor of Accounting. She has other academic qualifications on her resume which have equipped her for the role. For his part the secondary applicant (Mr Rivera) began work as a handyman in Australia and was successful at it - so much so - that he has hired new staff. In the last 12 months he has branched out into the area of air conditioning – both in ducting and installation of air conditioning. He intends this to be the principal focus of his company in the future. In recent information provided to the Tribunal after the hearing he has indicated that he has been increasingly successful and intends shortly to hire more staff (T1, ff.99 reverse).

11. The predicament for the secondary applicant (Mr Rivera) is that time spent away from a client on bureaucratic tasks like contract administration - is money and business opportunity lost. He summarised it succinctly in oral evidence when he said ‘I have no idea about writing contracts’. Furthermore, English is not his mother tongue making such a task ever more onerous and time consuming. This latter role is undertaken by his wife (the applicant) who is eminently qualified at this task both academically and practically (see page 3 of the delegate’s decision record). The Tribunal finds that she has the academic and practical skills to perform the occupation of Contract Administrator (ANZSCO 511111) and such a person is necessary in the situation of the family business. The parties indicated in the hearing that they were somewhat of a ‘dynamic duo’ where their opposite individual talents had combined to achieve business success. Thus they were able to improve the lot of the whole family. The success of their partnership can be measured in the growth and profitability of their small company business and the number of clients who have approached them for installation quotes (T1, f.98). The Tribunal, having revisited all the available evidence, rejects the delegate’s finding that ‘the position under review was created to secure the stay of the applicant’.

12. The Tribunal finds that the applicant’s intention to perform the occupation is genuine and the position associated with the nominated occupation is genuine. For these reasons the requirements of cl.457.223(4)(d) are met.

13. The Tribunal will now consider the situation of the second and fourth named applicants (Jose Pacifico Rivera Nino and John Alexander Rivera Bayer). The secondary criterion in clause 457.324(1) requires that “The applicant is included in any nomination that is required in respect of the primary applicant”. The Tribunal finds from evidence on file that the secondary applicants (Jose Pacifico Rivera Nino and John Alexander Rivera Bayer) were “included in any nomination that is required in respect of the primary applicant” and they meet the criterion.        

14. The Tribunal notes from Movement Records that one secondary visa applicant (Jose Luis Rivera Bayer) has never once entered Australia. Thus he was not in Australia at the time of visa application and he does not have standing for review. The Tribunal discussed this issue and its implications with the review applicant in the hearing. She indicated she was aware of her son’s problem and though upset by it was accepting of the reality of his migration situation.

15. The Tribunal issued an Invitation to Comment on Validity of Application to the secondary applicant (Jose Luis Rivera Bayer) on the basis that he was ineligible to apply for review at the Tribunal of the decision to refuse him a visa. He did not respond to the Invitation nor did his representative.

16. Therefore, the Tribunal finds Jose Luis Rivera Bayer is ineligible to be considered as a review applicant under these circumstances. Thus the Tribunal does not have jurisdiction in the matter of the application of Mr Jose Luis Rivera Bayer.

17. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

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

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

19. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the second named applicants meet the following criterion for a Subclass 457 visa:

    ·cl.457.324(1) of Schedule 2 to the Regulations.

20. The Tribunal does not have jurisdiction in the matter of Mr Jose Luis Rivera Bayer.

    Michael Cooke
    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.