1518132 (Migration)

[2016] AATA 3438

1518132 (Migration) [2016] AATA 3438 (8 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Manisha Sharma
Master Krish Sharma
Mr Rahul Sharma

CASE NUMBER:  1518132

DIBP REFERENCE(S):  BCC2013/915736

MEMBER:Nicole Burns

DATE:8 March 2016

PLACE OF DECISION:  Melbourne

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

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

Statement made on 08 March 2016 at 4:20pm

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 25 June 2013.

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 15 November 2013 on the basis that cl.457.223(4)(d) was not met because he was not satisfied that the first named applicant’s (the applicant) intention to perform the occupation was genuine and the position associated with the nominated occupation was genuine.

5. On 3 December 2013 the applicant applied to the Tribunal for review of the decision to refuse the visa and on 27 November 2014 the applicant appeared before the Tribunal to give evidence and present arguments relating to the issues arising in her case.  On 1 April 2015, following a decision to the Federal Circuit Court Australia (FCCA) in Minister for Immigration and Border Protection v Lee [2014] FCCA 2881, the Tribunal decided it did not have jurisdiction in the matter and refused to review the visa decision. The applicant appealed that decision and on 19 June 2015 the primary judge of the FCCA dismissed the application for judicial review of that decision. On 16 December 2015 the Federal Court of Australia set aside the FCCA decision dated 19 June 2015, declared that the Tribunal has jurisdiction in relation to the application for review dated 3 December 2013 and directed that that application be remitted to the Tribunal for determination.

6. The Tribunal notes that on 10 February 2015 the Tribunal set aside the related decision not to approve the business nomination application and substituted a decision that the nomination was approved[1]. 

   [1] MRT Case Number: 1318193

7. The applicants were represented in relation to the review by their registered migration agent.

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 delegate was not satisfied that the tasks of the position were consistent with the tasks of the nominated occupation as listed in the ANZSCO, being the nominated occupation of Program or Project Administrator.  The delegate stated that, whilst some of the listed duties related to project management or administration, the majority of duties related to retail management, import/export, office administration and data entry.  Consequently, as the tasks of the position were inconsistent with the nominated occupation, the delegate did not consider the position associated with the nominated occupation to be genuine and so found that the applicant did not meet subparagraph 457.223(4)(d)(ii). 

12. In assessing whether to approve the related business nomination the Tribunal considered numerous criteria including whether the position associated with the nominated occupation is genuine.  After hearing oral evidence from the employer and nominated employee (the applicant in this case) as well as considering an updated position description, the Tribunal was satisfied that the position associated with the nominated occupation was genuine.  The decision record relevant states:

    Position must be genuine

    Regulation 2.72(10)(f) requires that the position associated with the nominated occupation is genuine.

    The delegate was not satisfied that the tasks of the nominated position were consistent with those listed in ANZSCO.  The delegate was of the view that whilst some tasks relate to project management or administration, the majority of tasks relate to retail management, import/export, and office administration and data entry.  The delegate was relying upon tasks of the position listed in the letter of offer to the nominee. 

    During the review stage the applicant has provided an updated position description in which the duties and responsibilities more closely align with those described in ANZSCO for program and/or project administrators. 

    The Tribunal has also had regard to the applicant’s oral evidence about the rapid development and expansion of his import business and the nominee’s critical role in that regard.  He stated that his business, which essentially imports dry and frozen food products from India, Italy and Myanmar to sell to food services and the retail sector in Tasmania, has grown significantly since it was first established in 2009.  He currently employs up to 10 staff and the business has gone from importing one product (rice) to importing 500 items/products which are distributed to different retail wholesale delivery companies in Australia and overseas.  

    The applicant submitted that the nominee has been instrumental in driving this growth, on a project-by-project basis.  He told the Tribunal that the nominee initially started as a console operator at one of the three service stations he owns however she quickly moved into a project management/administration role for his import business, after her initial success securing an agreement with a key distributor.  He described the nominee’s specific tasks, and gave examples of a number of projects she has worked on in the past and those she is currently working on, including looking into distributing rice to the mainland.  The nominee expanded on her role in her oral and written evidence to the Tribunal, including specific details about six main projects she has been working on and her specific role and responsibilities in implementing these projects, ensuring staff manage the projects where required, and negotiating and implementing various supply and delivery contracts.  She also draws up contracts of supplies and coordinates and monitors deliveries to assist the marketing manager with his customer service role. 

    The representative submitted at the hearing that it is easy for the delegate to think that petrol stations plus import/export business may not need a project manager/administrator.  However, based on the applicant’s oral evidence, it is evident that the business has grown substantially, attributable in large part to the work of the nominee.  She said also that the applicant’s father, who owns a rice mill in India, has started to supply rice to the business and they plan to distribute the rice to large retailers such as AGL, Woolworths and Coles in the near future. 

    The Tribunal found the applicant and the nominee to be credible and persuasive witnesses at the hearing and accepts their submissions in this regard. The Tribunal notes that a copy of an organisational chart and supply agreement with one of the business’s key distributors was also submitted, to support their contentions. 

    Having had regard to the tasks and duties listed in the updated position description provided to the Tribunal on review, as well as the oral evidence of the applicant and the oral and written evidence of the nominee and relevant supporting documents, the Tribunal accepts that the nominated occupation corresponds to the tasks and duties of the occupation described in ANZSCO.

    Having regard to the totality of the evidence before it, the Tribunal therefore accepts that there is a genuine need for the position of ‘Project Administrator’ in the business.

    For these reasons the requirements of r.2.72(10)(f) are met.

13. For the same reasons, and noting that the same Member made the decision in the (related) business nomination case, the Tribunal is satisfied 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.

14. The second and third named applicants’ entitlement to a visa is initially dependent on whether the primary applicant is successful in obtaining the visa, and then on whether they meet any additional visa criteria applicable.  Given that the application is being remitted to the Department to consider the remaining criteria for a Subclass 457 visa in respect of the primary applicant, it follows that the Department must also consider the remaining criteria in respect of the secondary applicants as well.

    Other matters:-

15. The representative has provided to the Tribunal evidence that the sponsoring employer –  Loveleen Gupta t/a KLM Imports - was approved as a standard business sponsor for a three year period commencing on 20 June 2013.  She also provided to the Tribunal a notice of a decision to approve the nomination which identifies the applicant as the nominee and the occupation/code as ‘Program or Project Administrator – 511112’ dated 18 March 2015, which is valid for 12 months. 

    CONCLUSION

16. 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

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

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

    Nicole Burns
    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.