Benavides (Migration)

[2018] AATA 5605

Benavides (Migration) [2018] AATA 5605 (20 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Javier Antonio Munoz Benavides

CASE NUMBER:  1704472

DIBP REFERENCE(S):  BCC2016/1912420

MEMBER:Antonio Dronjic

DATE:20 November 2018

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 20 November 2018 at 2:21pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
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 1 June 2016.

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 20 February 2017 on the basis that cl.457.223 (4)(a) was not met. On 17 January 2017, the department refused the nomination application lodged by the applicant’s prospective employer, Own Your Home Pty Ltd, nominating the applicant for a position of a Retail Buyer within the business.

5. The applicant applied to the Tribunal on 11 March 2017 and provided a copy of the primary decision record with the application. He was represented by a migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

7. 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.

8. On 8 November 2018, the Tribunal wrote to the applicant pursuant to s.359(2) of the Act inviting him to provide information in writing as to whether the applicant is the subject of an approved nomination and meets cl.457.223(4)(a) of Schedule 2 to the Migration Regulations.

9. The invitation was sent to the applicant’s address provided in connection with the review and advised that, if the information was not provided in writing by 22 November 2018, and no extension of time has been granted, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicant would lose any entitlement he might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments.

10. On 19 November 2018, the applicant’s representative wrote to the Tribunal stating that her instructions are that there is no approved nomination in respect of the applicant and that the applicant is happy for the refusal decision to be affirmed.

11. On 20 November 2018, the Tribunal officer contacted the applicant’s representative seeking clarification as to whether the applicant consents to the Tribunal deciding the review without the applicant appearing before it pursuant to s.360(2)(b) of the Act noting that If so, the Tribunal will proceed to its decision and affirm the primary decision.

12. On 20 November 2018, the applicant’s representative wrote to the Tribunal stating that her client is happy for the Member to make decision on papers.

13. Based on the evidence before it, the Tribunal is not satisfied that the applicant is, at the time of decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the applicant applicant that has not ceased.  The Tribunal finds that the applicant applicant does not satisfy cl.457.223 (4)(a).

14. 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

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

    Antonio Dronjic
    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.