Attri (Migration)

[2021] AATA 2586

Attri (Migration) [2021] AATA 2586 (5 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Reena Attri

CASE NUMBER:  1819192

HOME AFFAIRS REFERENCE(S):          BCC2016/1924438

MEMBER:Susan Trotter

DATE:5 June 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 05 June 2021 at 5.45pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Under the Act and Regulations, prior to 18 March 2018,[1] there were three stages in sponsoring an employee from overseas in the Subclass 457 visa programme:

   (a)  Sponsorship – an employer applies for approval as a standard business sponsor;

   (b)  Nomination – the employer nominates an occupation for a prospective or existing Subclass 457 visa holder; and

   (c)   Visa application – the person nominated to work in the nominated occupation applies for the Subclass 457 visa.

   [1] From which date new applications for Subclass 457 visas ceased.

3. The visa applicant applied for the visa on 2 June 2016 seeking to work in the nominated occupation of Café or Restaurant Manager (ANZSCO 141111) for Armani Ent Pty Ltd ATF NR Khoshaba Family Trust (the nominator).

4. 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 (Cth) (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.

5. The delegate refused to grant the visa on 12 June 2018 on the basis that cl.457.223(4)(a) was not met because the nominator did not have an approved nomination in place as required.

6. The applicant lodged an application with the Tribunal on 2 July 2018 seeking review of the delegate’s decision. The applicant provided a copy of the delegate’s decision to the Tribunal.

7. The applicant appeared before the Tribunal by telephone on 3 June 2021 to give evidence and present arguments.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold the hearing by telephone, having regard to the nature of this matter. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant meets the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

11. 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.

12. The applicant applied for the visa on the basis of a nomination application in relation to the applicant made under s.140GB of the Act by the nominator.

13. The Tribunal discussed with the applicant that she provided a copy of the delegate’s decision to the Tribunal and that decision included that at the time the Department considered the matter, the nominator did not have an approved nomination in relation to her visa application.

14. Additionally, the Tribunal put to the applicant[2], that, information before the Tribunal is that:

    (a)  On 25 May 2018, the nominator applied to the Tribunal for review of the decision of the Department to refuse to approve the nomination application.

    (b)  On 21 January 2021, the Tribunal (differently constituted), in case file 1815282, affirmed the Department’s decision to refuse the nominator’s nomination application in relation to the applicant. 

    (c)   There has been a change in the Subclass 457 scheme and law and it is no longer possible to apply for a new nomination supporting a Subclass 457 visa since 18 March 2018.

    [2] Pursuant to procedure set out in section 359AA of the Act

15. The Tribunal explained to the applicant that this information was relevant to the review because if the Tribunal relied upon this information and found that there was no approved nomination that had not ceased, it would be the reason or part of the reason to affirm the decision under review to refuse to grant the visa to the applicant. The Tribunal invited the applicant to comment on or respond to the information or to seek additional time to do so.

16. The applicant sought to respond to or comment on the information there and then at the hearing and told the Tribunal that the nominator had told her they did not receive an email from the Department about the nomination being refused. She cannot understand why the nomination was refused because a nomination had previously been approved in relation to her for a previous visa application. She said everything was the same at the time and she was working there and it did not make sense. She also told the Tribunal that her employer has now sold the business and she is a single mum now, her whole life is here and she does not know what to do. The applicant agreed that there is no approved nomination.

17. As discussed with the applicant, without diminishing in any way these matters, the only issue before the Tribunal is whether there is an approved nomination that has not ceased. There is no provision in the legislation to take into account discretionary matters and it is not the role of the Tribunal to advise as to what other options might be available to the applicant.

18. There is no evidence before the Tribunal that the applicant is the subject of a nomination of an occupation in relation to him which has been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i) of Schedule 2 to the Regulations, and given the abolition to the Subclass 457 visa scheme no new application for a nomination capable of supporting the applicant’s Subclass 457 visa application can now be made.

19. At the time of this decision, there is no evidence before the Tribunal of an approved nomination of an occupation under s.140GB relating to the applicant.

20. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

21. It is no longer possible to make a nomination application in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.

22. The Tribunal finds that there is no approved nomination by a standard business sponsor that has not ceased.

23. It follows that the requirements of cl.457.223(4)(a) are not met and cannot now be met.

    Conclusion

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

25. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.

    DECISION

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

    Susan Trotter
    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.