1518125 (Migration)

[2016] AATA 3835

1518125 (Migration) [2016] AATA 3835 (29 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charan Kamaljit Singh

CASE NUMBER:  1518125

DIBP REFERENCE(S):  BCC2014/1753271

MEMBER:Alison Mercer

DATE:29 April 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)(d) of Schedule 2 to the Regulations.

Statement made on 29 April 2016 at 3:25pm

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 17 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 visa on 15 September 2014 on the basis that cl.457.223(4)(d) was not met because the delegate was not satisfied that the position associated with the nominated occupation of Facilities Manager was genuine.  The delegate noted that the associated nomination made by the applicant’s employer, Chauhan Brothers Pty Ltd, had been refused on the basis of a finding that the nominated occupation was not genuine.

5. The Tribunal received a review application on 3 October 2014, accompanied by a copy of the delegate’s decision.  On 17 April 2015, the Tribunal made a decision that it did not have jurisdiction in this matter based on its interpretation of s.338(2)(d), which it considered required the applicant to have been the subject of an approved nomination at the time of his review application, or that the applicant’s sponsoring employer had a review application with the Tribunal in relation to the refusal of standard business sponsorship status at the time of the applicant’s review application.  As this was not the case, the Tribunal found the applicant’s review application was not valid.

6. The applicant sought judicial review of this decision, and on 21 December 2015, the Federal Circuit Court of Australia set aside the Tribunal’s decision and remitted the decision back to the Tribunal by consent for redetermination according to the law.  The Court found that, following the case of Kandel v MIBP [2015] FCCA 465, the Tribunal did in fact have jurisdiction to review the refusal of the applicant’s subclass 457 visa.

7. On 14 April 2016, the Tribunal conducted 2 hearings, one related to the refusal to approve the applicant’s sponsoring employer’s nomination of him (at which the applicant gave evidence as a witness) and the second related to the refusal of the applicant’s subclass 457 visa application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(d).

   Genuine intention

10. 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.

11. The Tribunal has taken into account the evidence given by the applicant and his employer at the hearing on 14 April 2016 for the associated nomination refusal review application made by Chauhan Brothers Pty Ltd (see paragraphs 12 to 25 of AAT decision 1416502 of 29 April 2016).

12. The Tribunal is satisfied that the wording in cl.457.223(4)(d)(ii) requiring that the position associated with the nominated occupation is genuine is identical to the wording of r.2.72(10)(f) of the Regulations relating to approval of nominations by employers.  As the Tribunal has made a positive finding about r.2.72(10)(f) in relation to the nominating employer and the first named applicant’s position of Facilities Manager in the related nomination review decision (at paragraphs 73 to 77 of AAT decision 1416502 of 29 April 2016), it relies on the same evidence and assessment to find that the nominated occupation is genuine.  It therefore finds that cl.457.223(4)(d)(ii) is met.

13. The Tribunal is satisfied that the first named applicant has now been working in the nominated position for nearly 2 years, and is therefore satisfied that his intention to perform the occupation is genuine, and thus finds cl.457.223(4)(d)(i) is met.

14. For the above reasons, the Tribunal finds that cl.457.223(4)(d) is met as a whole.

15. 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

16. 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)(d) of Schedule 2 to the Regulations.

    Alison Mercer
    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.