1516350 (Migration)

[2016] AATA 4405

1516350 (Migration) [2016] AATA 4405 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  AKHP Investments Pty Ltd

VISA APPLICANTS:  Mr Satnam Singh
Mrs Navroop Kaur

CASE NUMBER:  1516350

DIBP REFERENCE(S):  BCC2015/1657137

MEMBER:Bruce Henry

DATE:19 September 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 19 September 2016 at 3:44pm

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 10 June 2015.

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 13 November 2015 on the basis that cl.457.223(4)(e) was not met because the visa applicant failed to provide a skills assessment when requested to do so by the Department.

5. Mr Antoine Ibrahim appeared before the Tribunal on 19 September 2016 to give evidence and present arguments on behalf of the review applicant.

6. The review applicant was represented in relation to the review by its registered migration agent, who did not attend the hearing.

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, Mr Singh, meets the requirements of cl.457.223(4)(e). The review applicant was at the time of the application an approved standard business sponsor had nominated Mr Singh for the occupation Cook, ANZSCO 351411.

   Skills, qualification and employment background of the applicant

9. Clause 457.223(4)(da) requires the applicant to have the skills, qualifications and employment background necessary to perform the tasks of the nominated occupation. In addition, under cl.457.223(4)(e), if required by the Minister, the applicant must demonstrate that he or she has the skills that are necessary to perform the occupation in the manner specified by the Minister.

10. Clause 457.223(4)(e) provides that if the Minister requires an 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.

11. The background to the matter is set out in the decision record of the delegate, a copy of which was provided to the Tribunal by the review applicant:

    The primary applicant is being nominated by AKHP INVESTMENTS PTY LTD to work as a Cook ANZSCO 351411. On 26 June 2015 the applicant was requested to provide evidence of either:

    ·successful completion of a TRA 457 Skills Assessment, or

    ·commencement of a TRA 457 Skills Assessment.

    The applicant was provided with 28 days to respond.

    On 14 July 2015 the applicant provided the following:

    ·CV/Resume

    ·Evidence from college addressing that the visa applicant have studied cert iv in cookery for 48 weeks with college (same as previously provided)

    ·Form 80

    ·Health Insurance Cover

    Since the applicant did not provide either successful completion of a TRA 457 Skills Assessment, or commencement of a IRA 457 Skills Assessment by the due date, the applicant was sent a second request letter to provide evidence of a successful outcome in a TRA 457 Skills Assessment in the nominated occupation. The letter was sent on 27 July 2015, and the applicant was requested to provide the evidence by 21 September 2015.

    On 27 July 2015 the applicant provided the following:

    ·Employment Reference

    ·Evidence from college addressing that the visa applicant have studied cert iv in cookery for 48 weeks with college (same as previously provided)

    I have assessed the information against the policy requirements and I am not satisfied the applicant meets regulation 457.223(4)(e). The provided Certificate IV in Commercial Cookery was obtained from an RTO which is not one approved by TRA to conduct the skills assessment and therefore I cannot accept this as a skills assessment to meet regulation 457.223(4)(e).

12. The Tribunal did not receive any further material relevant to this application from the review applicant during the course of the review. Accordingly, the Tribunal wrote to the review applicant advising that it had considered the material before it but was unable to make a favourable decision on this information alone, and inviting the review applicant to give evidence and present arguments in relation to the decision under review at a hearing.

13. At the hearing the Tribunal asked Mr Ibrahim whether he was able to provide evidence that Mr Singh had commenced or completed a skills assessment from Trades Recognition Australia (TRA) as requested by the Department. Mr Ibrahim told the Tribunal that Mr Singh has been in India since before the visa application was lodged, and has not sought a skills assessment from TRA.

14. Mr Ibrahim told the Tribunal that his representative had advised him that all of the necessary documents had been provided to the Department. The Tribunal explained that the provisions of cl.457.223(4)(da) and cl.457.223(4)(e) meant that in addition to providing evidence of an applicant’s qualifications and work experience, an applicant was required, if requested by the Department, to provide evidence of a specified skills assessment.

15. The Tribunal further explained that as the Department had requested a skills assessment from TRA, it was necessary for such an assessment to be provided by Mr Singh if his application was to succeed. Mr Ibrahim stated again that the review applicant was unable to provide evidence that such a skills assessment had been sought or obtained by Mr Singh.

16. In these circumstances, the Tribunal finds that Mr Singh does not satisfy the requirements of cl.457.223(4)(e).

17. The Tribunal is also satisfied on the basis of the application documents that appear on the departmental file that the second named visa applicant, Ms Kaur, applied for the visa as a member of the family unit of Mr Singh. As he does not satisfy the primary criteria for the visa, she cannot satisfy cl.457.321 of Schedule 2 of the Regulations.

18. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Bruce Henry
    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

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    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.