Chan (Migration)

[2018] AATA 4761

Chan (Migration) [2018] AATA 4761 (3 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ho Jonathan Chan

CASE NUMBER:  1620217

DIBP REFERENCE(S):  BCC2016/368019

MEMBER:Danielle Galvin

DATE:3 December 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations

Statement made on 03 December 2018 at 11:06am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – position of Sales and Marketing Manager – nomination approved upon review – approved nomination is still current – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 140

Migration Regulations 1994, Schedule 2 cl 457.223; r 2.75

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The applicant applied for the visa on 25 January 2016. The delegate refused to grant the visa on 18 November 2016.

2. At the time of the visa application was lodged Class UC contained Subclause 457. The criteria to be met to succeed in the grant of a Subclause 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. At the time of the making of the decision by the delegate from the Department, cl.457.223 required the visa applicant to satisfy one of the alternative “streams” for the visa. One of these streams is contained in cl.457.223(4). This clause is relevant to sponsorship for employment in an occupation by a standard business sponsor.

4. In this case specific claims have been made against cl.457.223(4) and in particular cl.457.223(4)(a).

5. The delegate refused to grant the visa on 18 November 2016 on the basis that the required criteria in cl.457.223(4)(a) had not been met as there was no approved nomination in place as required by s.140GB of the Act.

6. On 29 November 2016 the Tribunal received an application for review of the delegate’s decision.

7. The applicant was represented by his migration agent.

8. On 30 October 2018 the Tribunal approved the nomination of by Canaan Lawyers Pty Ltd (Canaan Lawyers) to sponsor the applicant as a Sales and Marketing Manager (ANZSCO Code 131114).

9. The applicant is therefore the subject of an approved nomination.

10. In light of this new evidence and for the following reasons the Tribunal is satisfied that the criteria have been met and has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the first named visa applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

12. Clause 457.223(4)(a)(i) requires that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act. The nomination was approved by the Tribunal on 30 October 2018 and accordingly the Tribunal finds that the requirements of cl.457.223(4)(a)(i) are met.

13. Clause 457.223 (4)(ii) requires that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved. There is evidence before the Tribunal demonstrating that Canaan Lawyers was approved as a standard business sponsor for a period of 5 years commencing on 1 February 2016. Canaan Lawyers was therefore a standard business sponsor at the time the nomination application was approved.

14. Clause 457.223(4)(a)(iii) requires that the approval of the nomination has not ceased as provided for in r.2.75 of the Regulations.

15. There is no evidence before the Tribunal to suggest that Canaan Lawyers, as the approved sponsor, has notified the Department in writing that it has withdrawn its nomination. Therefore the Tribunal finds that r.2.75(2)(a) does not apply in this case.

16. The approval of the business nomination lodged by Canaan Lawyers was granted on 30 October 2018. As a result of r.2.75(2)(b) the approval of this nomination ceases to have effect 12 months from the date the nomination was granted. Therefore as of today’s date the Tribunal finds that the approval of the nomination has not ceased and r.2.75(2)(b) does not apply in this case.

17. As no Subclass 457 visa has been granted to the first named applicant, as the person who was proposed to be employed in respect of the nominated role of Sales and Marketing Manager, the Tribunal finds that r.2.75(2)(c) does not apply.

18. Canaan Lawyers was approved as a standard business sponsor on 1 February 2016 for a period of 5 years, ceasing on 1 February 2021. The Tribunal finds that, for the purposes of r.2.75(2)(d), the sponsorship approval has not ceased at the time of the Tribunal’s decision and therefore the Tribunal finds that r.2.75(2)(d) does not apply.

19. There is no evidence before the Tribunal that the approval granted to Canaan Lawyers as a standard business sponsor has been cancelled under s.140M(1) of the Act. Therefore the Tribunal finds that r.2.75(2)(e) does not apply.

20. There is no evidence to suggest that the approval of the nomination is to be given to a party to a work agreement, as requitred by r.2.75(2)(f). Therefore the Tribunal finds that r.2.75(2)(f) does not apply.

21. The Tribunal finds that the approved business nomination has not ceased under r.2.75(2) at the time of making this decision. Therefore the Tribunal is satisfied that at the time of making this decision , the applicant is the subject of an approved nomination lodged by Canaan Lawyers as approved standard business sponsor.

22. Consequently the Tribunal finds that the requirements of cl.457.223(4)(a)(iii) have also been met at the time of this decision and therefore the applicant satisfies the requirements of cl.457.223(4)(a).

    DECISION

23. As a result of the Tribunal’s findings the Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations

    Danielle Galvin
    Member