1602597 (Migration)

[2016] AATA 4213

1602597 (Migration) [2016] AATA 4213 (25 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhawandeep Singh Deol

CASE NUMBER:  1602597

DIBP REFERENCE(S):  BCC2013/2160210 BCC2013/2160437

MEMBER:Adrian Ho

DATE:25 July 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 applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations; and

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

Statement made on 25 July 2016 at 2:42pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 14 May 2014 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 21 December 2013. At the time the 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).

3. The delegate refused to grant the visa on 6 February 2014 on the basis that cl.457.223(4)(d)(ii) was not met.

4. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

   1.Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

   2.A relevant nomination by Omkar Automotive Ptd Ltd for the occupation of Motor Mechanic was approved for the applicant on 19 May 2016.

   3.For these reasons the requirements of cl.457.223(4)(a) are met.

   Genuine intention

   4.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.

   5.It is a mandatory requirement for the nomination that the position associated with the nominated occupation is genuine: r.2.72(10)(f).  That requirement is identical to the criterion in cl.457.223(4)(d)(ii).

   6.The applicant’s visa application was assessed against a nomination by CK Workforce for the occupation of Customer Service Manager.  The delegate found that the position at CK Workforce associated with that nominated occupation was not genuine.

   7.The circumstances are now quite different. 

   8.The most recent nomination for the applicant, by a different sponsor, for the occupation of Motor Mechanic having been approved, it may be presumed that the delegate deciding the nomination was satisfied that the position associated with the nominated occupation is genuine, a mandatory requirement for approval of the nomination.

   9.The sponsoring business is that of a small motor mechanic service provider wishing to sponsor a visa holder constituting a third employee motor mechanic.  The number of employee motor mechanics is proportional to the size and scale of the business.

   10.On the evidence, and duly noting that the Department has approved the nomination where it is mandatory that the delegate is satisfied as to the same question, the tribunal is satisfied that the position associated with the nominated occupation is genuine.

   11.For these reasons the requirements of cl.457.223(4)(d)(ii) are met.

   12.The tribunal has not considered if the applicant has the skills and experience necessary to perform the occupation.

   13.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

   14.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)(a) of Schedule 2 to the Regulations; and

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

   Adrian Ho
   Member