Amandeep Singh (Migration)

[2019] AATA 5152

Amandeep Singh (Migration) [2019] AATA 5152 (13 August 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amandeep Singh

CASE NUMBER:  1809274

DIBP REFERENCE(S):  BCC2015/1145382

MEMBER:Karen Synon

DATE:13 August 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 13 August 2019 at 11:06am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 April 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 visa on 23 March 2018 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

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

6. On 25 July 2019 the Tribunal invited the applicant to a hearing to give evidence and present arguments on 13 August 2019.  On 5 August 2019 the applicant declined the hearing.  Relevantly a submission from his representative stated:

   The case is related to the nomination refusal case AAT reference 1802566.  Given that the AAT has affirmed the nomination refusal, the current application is futile and on that basis I request that this matter be determined “on the papers”.

7. On this basis the Tribunal has proceeded to decision pursuant to s.360(2)(b).

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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)(a).

   Requirement for an approved nomination

10. 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.

11. The primary decision records that on 20 February 2018 the applicant was advised that his proposed sponsor, Sapkota Brothers Pty Ltd did not have an approved nomination in place for him.

12. On 9 July 2019 the Tribunal wrote to the applicant in accordance with s.359A of the Act inviting comments or a response to the following information:

    ·     The information is contained on Tribunal file numbered 1802566.  That Tribunal file was created because SAPKOTA BROTHERS PTY LTD applied to the Tribunal for review of a department decision not to approve a nomination, in respect of you, for the occupation of ‘Cook’.  On 4 July 2019 the Tribunal affirmed the decision of the department to refuse the nomination made by SAPKOTA BROTHERS PTY LTD in respect of you.

    ·     The Tribunal has further had regard to information contained on Departmental file records indicating that you are not presently the subject of an approved nomination by a standard business sponsor.

13. The applicant was advised that this information is relevant to the Tribunal’s review because cl.457.223(4)(a) requires that at time of decision he must be the subject of an approved nomination by a standard business sponsor.

14. Comments or a response were requested by 23 July 2019.  On 23 July 2019 the following relevant response was received:

    Due to some personal emergencies my client Sapkota brothers could not provide all the required documents on time to send to your office and/or to lodge a new SBS for subclass 482.  Now they have gone for judicial review.  For your reference please see attached correspondence from the Federal Court of Australia.  His nomination file is now under judicial review.

15. The applicant provided a: ‘Notice of Filing and Hearing’ issued by the Federal Circuit Court of Australia lodged by the applicant in this case with a directions hearing set for 27 April 2022; a copy of the application for judicial review again listing the person in this case as the applicant (rather than the sponsor whose nomination was affirmed); and a copy of the Tribunal decision in case number 1802566.

16. On this basis a hearing was scheduled for 13 August 2019 but, as noted above in paragraph 6, the applicant declined the hearing invitation.

17. As detailed to the applicant in accordance with s.359A, the review of a decision of the department not to approve a nomination in respect of him by Sapkota Brother Pty Ltd, his proposed nominator, was affirmed by the Tribunal on 4 July 2019 and further there is no information contained on the Department’s files which records that the applicant is the subject of an approved nomination by a standard business sponsor.  The Tribunal notes that the applicant, through his representative, has conceded that the current application for review is futile.

18. As there is no relevant nomination in relation to the applicant which could satisfy cl.457.223(4)(a), the applicant is not presently the subject of an approved nomination by a standard business sponsor.

19. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

20. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Karen Synon
    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.