CHAVEZ CASTANEDA (Migration)

[2019] AATA 2662

CHAVEZ CASTANEDA (Migration) [2019] AATA 2662 (10 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Maricella Chavez Castaneda

CASE NUMBER:  1710217

DIBP REFERENCE(S):  BCC2016/2369691

MEMBER:K. Chapman

DATE OF DECISION:  10 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 10 January 2019 at 9:54am

CATCHWORDS

MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – occupation of Accountant (General) – approved nomination of an occupation – nomination refused upon review – decision under review affirmed        

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.72, 2.73

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (‘the Act’).

2. The applicant, Ms Maricella Chavez Castaneda, applied for the visa on 15 July 2016. She did so in connection with her nomination for a position by Colombicoff Holdings Pty Ltd ATF The James Family Trust (‘the nominator’). 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 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.

3. The delegate refused to grant the visa on 5 May 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination as required. On 12 May 2017, the applicant applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

4. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Aura James of Colombicoff Holdings Pty Ltd ATF The James Family Trust (‘the nominator’). The applicant submitted documents relating to her employment with the nominator and they have been duly considered by the Tribunal.  

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish and English languages. The applicant confirmed to the Tribunal that she understood the interpreter and was feeling well enough to give her evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

8. 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.

9. During the review hearing, the applicant was invited to provide evidence in support of her application for review. In summary, the applicant advised that she is genuinely performing the role of an Accountant (General) (ANZSCO 221111) with Colombicoff Holdings Pty Ltd ATF The James Family Trust (‘the nominator’) and contended that she meets the requirements for the Subclass 457 visa. However, she accepted that the nomination had been refused by the Department and affirmed by the Tribunal prior to her review hearing (see AAT matter 1706149).

10. Ms Aura James of the nominator also gave oral evidence indicating that the applicant is genuinely performing the role of an Accountant with her business and placed blame with her representative for the nomination application being refused and subsequently affirmed by the Tribunal.

11. Pursuant to the procedure in s.359AA of the Act, the Tribunal raised the following information with the applicant:

    ·The application for approval of the nominated position made by Colombicoff Holdings Pty Ltd ATF The James Family Trust (‘the nominator’) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

12. The Tribunal indicated that the above information is relevant to the review as it tends to suggest that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. The Tribunal indicated that if it were to rely upon the s.359AA information it would be the reason or part of the reason to affirm the decision under review. The applicant confirmed that she understood why the information is relevant to the review. The applicant was offered an adjournment before commenting on or responding to the information and she requested an adjournment which was duly granted.

13. Following the adjournment, in summary, the applicant advised that the non-approval of the nomination was caused by her representative’s failings, however she accepted that her application for review could not be successful. The Tribunal has very carefully considered the applicant’s response to the s.359AA information.

14. Having carefully considered the evidence, the Tribunal finds that at the time of its decision there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Accordingly, the requirements of cl.457.223(4)(a) are not met.

15. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    K. Chapman

    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.