Canberra Automotive Pty Ltd (Migration)

[2020] AATA 5858

Canberra Automotive Pty Ltd (Migration) [2020] AATA 5858 (17 December 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Canberra Automotive Pty Ltd

VISA APPLICANT:  Mr Rizwan Gulzar

CASE NUMBER:  1816411

DIBP REFERENCE(S):  BCC2018/973963

MEMBER:Stavros Georgiadis

DATE:17 December 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 17 December 2020 at 11:17pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, Schedule 2, cl 457.223

CASES

VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280      

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 28 February 2018.

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 29 May 2018 on the basis that cl.457.223(4)(a)(i) was not met because there was no approval of a nomination of an occupation in relation to the visa applicant under section 140GB of the Act.

5. The review applicant in this case is the sponsor employer, Canberra Automotive Pty Ltd, who has standing in this review because the sponsored visa applicant, Rizwan Gulzar, was offshore when the visa application was lodged.  The review applicant‘s General Manager and former Director, Sammy Hajj, appeared before the Tribunal on 17 December 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Rizwan Gulzar who is the visa applicant for the Subclass 457 visa in this AAT casefile 1816411 refusing the Subclass 457 visa.  The related matters 1809998 refusing the nomination and this matter, were heard together in a combined hearing.

6. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicant. 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 video conference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

7. The review applicant was represented in relation to the review by its registered migration agent.

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)(i).

   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 (SBS) that has not ceased.

11. On 17 December 2020 the Tribunal affirmed the decision under review not to approve the nomination of an occupation in relation to the applicant in the related AAT casefile matter 1809998 on the basis of the reasons set out in the Decision Record of that date.  

12. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant and the visa applicant at the hearing that in circumstances where there is no approved nomination, the visa applicant would not meet an essential criterion to satisfy cl.457.223(4)(a) for the grant of the visa and that this would be the reason, or part of the reason, for affirming the decision under review not to grant the Subclass 457 visa. The Tribunal explained that the applicant and Mr Gulzar could seek additional time to comment on, or respond, which the Tribunal would consider.  The applicant and Mr Gulzar responded straight away and confirmed to the Tribunal that they understand that in circumstances where the nomination has been refused, the visa application would not be successful as it is accepted that an approved nomination is one of the required criteria for grant of the visa: (cl.457.223(4)(a)(i)).

13. The Tribunal has not returned the matter for any further hearing or submissions as, in these circumstances and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58), it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 457 visas cannot be granted in the absence of an approved nomination in respect of the visa applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the oral submissions made by the applicant’s representative at the hearing, that concur with this.

    CONCLUSION

14. Having considered the available evidence before it discussed, the Tribunal finds that the nomination of an occupation in relation to the applicant has not been approved under section 140GB of the Act as is required in cl.457.223(4)(a)(i).

15. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met and the visa is refused. 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

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

    Stavros Georgiadis
    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.