CALMA (Migration)

[2021] AATA 1303

CALMA (Migration) [2021] AATA 1303 (15 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms ANGELA LOGRONIO CALMA
Mr Avinash Thapa

CASE NUMBER:  1733185

HOME AFFAIRS REFERENCE(S):          BCC2017/3080598

MEMBER:Cathrine Burnett-Wake

DATE:15 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 15 March 2021 at 2:13pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457–standard business sponsor stream– nomination refused– not the subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 and Border Protection to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 25 August 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 (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.

4. The delegate refused to grant the visas on 18 December 2017 on the basis that cl 457.223(4)(a) was not met because the nomination application lodged by the prospective employer, Randwick Chemist Trust was refused.

5. On 16 February 2021 the Tribunal wrote to the applicants by letter advising that it had considered all the material before it relating to their application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the review applicants to give oral evidence and present arguments at a hearing on 15 March 2021.

6. On 23 February 2021, the Tribunal again wrote to the applicants by letter inviting them to comment on or respond to information. The particulars of the information being, the nominator’s review before the Tribunal for the nomination was affirmed. Meaning the nominators application for the nominated position was not approved which was relevant as it was a requirement for the grant of the visa that the position specified in the visa application is subject to an approved nomination.

7. On 9 March 2021 the Tribunal was advised in writing that the applicants did not wish to give oral evidence and consented to the Tribunal proceeding to decide on the review without taking any further action to allow or enable them to appear before it. This advice was from the applicant direct. The Tribunal is satisfied this person had authority to act on behalf of all the applicants. This matter has therefore been determined on the evidence available to the Tribunal and no hearing was held.

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

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 there is an approved nomination: cl 457.223(4)(a).

    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. Based on information before the Tribunal, it finds that there is no approved nomination of an occupation relating to the applicant.

13. For these reasons the requirements of cl.457.223(4)(a) are not met.

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.

15. The Tribunal must also affirm the decision to refuse to grant a subclass 457 visa to the second named applicant as they do not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 457 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

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

    Cathrine Burnett-Wake
    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.