1511835 (Migration)

[2016] AATA 3008

1511835 (Migration) [2016] AATA 3008 (5 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms MARIIA PUSHKINA

CASE NUMBER:  1511835

DIBP REFERENCE(S):  BCC2015/1640250

MEMBER:Fraser Syme

DATE:5 January 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 05 January 2016 at 11:12am

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 9 June 2015 on the basis of being a subsequent entrant.

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 for a subsequent entrant is cl.457.324(1) which requires the visa applicant to be included in any nomination that is required in respect of the primary applicant.

4. The delegate refused to grant the visa on 13 August 2015 on the basis that cl.457.324(1) was not met. The delegate sent a letter to applicant on 8 July 2015 inviting her to comment on adverse information which would be a reason to refuse her visa. The applicant was applying to be included in the nomination of her spouse, Mr Bancroft (who was the primary applicant) by his then employer, The Bather’s Pavilion Pty Ltd ATF Bathers Unit Trust (“Bathers”). As Mr Bancroft had ceased employment with Bathers, Bathers were no longer supporting the applicant’s visa application. The applicant was invited to comment about that information in writing within 28 days. As at the date of the delegate’s decision, the delegate received no response from the applicant and refused her visa. The applicant included the delegate’s decision with the review application.

5. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether applicant meets the requirements of cl.457.324(1).

8. On 29 December 2015, the applicant provided to the Tribunal evidence of an email dated 31 July 2015 which she sent to the delegate to advise she was included in a nomination of Mr Bancroft by Empire Holdings (Qld) Pty Ltd (“Empire”). She attached to the 31 July 2015 email a copy of Empire’s nomination application which also was made on 31 July 2015.

9. Contrary to the delegate’s decision, the applicant did reply within 28 days to the delegate’s letter of 8 July 2015. Regrettably though, for reasons unknown to the Tribunal, the delegate did not have regard to that evidence of Empire’s nomination application when making the decision under review.

10. However, it appears, again for reasons unknown to the Tribunal, Mr Bancroft has once more changed employer. Also attached to the applicant’s email to the Tribunal is another nomination of Mr Bancroft which includes the applicant. This nomination application was made on 24 November 2015 by Punthill Apartment Hotels Pty Ltd (“Punthill”). The information available to the Tribunal indicates Punthill’s nomination application is pending a decision by the department.

11. For the purpose of this decision though, on the basis of Punthill’s nomination, the Tribunal is satisfied the applicant is included in a nomination required in respect of Mr Bancroft. It follows that the applicant meets the requirements of cl.457.324(1).

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

    DECISION

13. 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.457.324(1) of Schedule 2 to the Regulations.

    Fraser Syme
    Member