Begum (Migration)

[2019] AATA 288

Begum (Migration) [2019] AATA 288 (4 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Fatema Begum
Mr Md Alauddin Mahmud
Master Fardin Mahmud

CASE NUMBER:  1724418

DIBP REFERENCE(S):  BCC2017/324149

MEMBER:Alan McMurran

DATE:4 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 04 February 2019 at 10:08am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – approved nomination – sponsor’s business deregistered – new employer nomination lodged – decision under review affirmed          

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 457.223, 457.321

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 24 January 2017.

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 20 September 2017 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 applicants appeared before the Tribunal on 13 December 2018 in a multi-application hearing list to give evidence and present arguments. The applicant was unrepresented.

   Background

6. The applicant is a 36 year old citizen of Bangladesh. According to Department records, the applicant first arrived in Australia on a vocational education and training 572 visa on 22 July 2007.

7. The applicant applied for her 457 visa sponsored by Irisivy Pty Ltd (the sponsor) for the position of Hairdresser (ANZSCO 391111). That nomination application was refused by the Department on 19 May 2017. There was no application for review sought by the sponsor of that decision. The sponsor being a corporate entity was deregistered on 2 March 2018.

8. Notwithstanding there was no approved nomination in favour of the applicant or review outstanding, the applicant sought this review of the refusal of her visa application by application to the Tribunal made 9 October 2017.

9. While waiting for the Tribunal’s review, the applicant sought a nomination from a second nominator, Bangla Hair & Beauty Studio Pty Ltd, which nomination application was made on 6 Oct 2017. That application was refused by the Department on 2 Oct 2018. No review was sought of that Department decision.

10. As at the date of hearing, the applicant is not the subject of a nomination by a sponsor which has been approved by the Department.

11. On 13 December 2018, the applicant attended a hearing before the Tribunal. The applicant made a request for an extension of time to provide to the Tribunal information about a further (third) nomination. No other information was provided at the hearing.

12. The applicant was requested to provide any further information she wanted the Tribunal to consider at her request by no later than 31 January 2019.

13. On 31 January 2019, the applicant informed the Tribunal by email that “I am waiting for my husbands skill assessment results.” No further information was provided about any further nomination application by the applicant or any anticipated time frame for a response to an application apparently pending by the applicant’s husband.

14. The applicant has not provided details about the applicant’s husband’s circumstances or any applications by him to the Department save for an attachment to the applicant’s email, which was a copy of a Vetassess application made for the applicant’s husband for assessment as a Cook (commercial cookery). Payment was made for the husband’s assessment on 5 December 2018. No further information is submitted about that circumstance.

15. The Tribunal has no other information before it of any successful nomination of the applicant herself for any other occupation.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. 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

18. 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.

19. The Tribunal has considered the information available to it including the Department’s file and the Tribunal’s file and the submission at hearing and the applicant’s email of 31 January 2019.

20. The Tribunal wrote to the applicant and her former representative on 12 October 2017, 6 November 2017, and 12 November 2018. The Tribunal did not receive any information in response to that correspondence. It was only at the hearing that the Tribunal was updated by the applicant about her present circumstances. The applicant’s representative withdrew, after the Tribunal hearing invitation had been sent to the applicants.

21. The Tribunal finds it is satisfied that there is no approved or pending nomination for a visa in favour of the applicant. For these reasons the requirements of cl.457.223 (4)(a) are not met. The Tribunal is further satisfied that it is not appropriate to extend time for an indefinite period to enable the applicant to await the outcome of an application by her husband, the details of which have not been provided.

22. The Tribunal notes that as at 18 March 2018, the 457 visa programme was replaced with the Temporary Skilled Shortage programme visa subclass 482. It is no longer open to the applicant to seek sponsorship under the former 457 programme and any review could not remit an application for a 457 visa to the Department for further consideration. 

23. 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.

    Secondary Applicants

24. The Tribunal is satisfied that the second and third named applicants (secondary applicants) are not members of the family unit of a person (the primary applicant) who has satisfied the primary criteria for the issue of a 457 visa and who is the holder of a subclass 457 visa.

25. As a result, the secondary applicants do not meet the requirements of cl. 457.321.

    DECISION

26. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Alan McMurran
    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.