CHOI (Migration)

CHOI (Migration) [2017] AATA 452 (24 March 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Chi Chung Choi
Ms Siew Li Voon
CASE NUMBER:  1620695
DIBP REFERENCE(S):  BCC2015/4024962
MEMBER:Danica Buljan
DATE:24 March 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 457 visa:
•Paragraph 457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 24 March 2017 at 5:29pm
CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Cook – No approved nomination – Second nomination approved
LEGISLATION
Migration Ac 1958, s 65, 338(2), 347, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 457.223(4)(a), 2.75(2)

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration on 16 November 2016 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under section 65 of the Migration Act 1958 (‘the Act’).
The applicants applied for the visas on 23 December 2015. At the time the 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’). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
The first-named applicant (‘the applicant’) lodged his application for a subclass 457 visa on the basis that he was to be employed by Hui Lau Shan Healthy Dessert Pty Ltd ATF Dessert Story Unit Trust.
The delegate refused to grant the visas on the basis that the applicant did not meet the requirements of paragraph 457.223(4)(a) of the Regulations, as he was not the subject of an approved nomination.
The applicants lodged an application for review with the Tribunal on 6 December 2016 and a copy of the primary decision was included with the application for review.[1] The applicants were represented in relation to the review by their registered migration agent.
[1]AAT Case Number 1620695 (T1), f.1-4
The Tribunal finds that the delegate’s decision is a Part 5-reviewable decision under subsection 338(2) and that the applicants have made a valid application for review under section 347 of the Act.
The matter was constituted to the Presiding Member on 22 March 2017. The Tribunal has before it the departmental file[2] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[3]
[2]D1 - Departmental file BCC2015/4024962, folio numbered f.1-173
[3]T1 - MRT case file 161571, f.1-60
On 22 February 2017[4] the applicant’s representative provided documentary evidence that the Department had approved the nomination lodged by Secret Kitchen Pty Ltd in his favour, on 21 February 2017.
[4]T1, f.8-10
As a result, and in accordance with subsection 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the parties to appear before the Tribunal to give evidence in relation to the decision under review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in this case is whether the applicant meets the requirements of paragraph 457.223(4)(a) of the Regulations, which states:
(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
…
The Requirement for an Approved Nomination - Paragraph 457.223(4)(a):
In his visa application the applicant stated that his prospective sponsoring employer was Hui Lau Shan Healthy Dessert Pty Ltd ATF Dessert Story Unit Trust. However, the Department refused the nomination application lodged by this prospective employer on 30 June 2016. As a result, the applicant took steps to find a new sponsoring employer for the purposes of his subclass 457 visa application.
Departmental records indicate that Secret Kitchen Pty Ltd was approved as a standard business sponsor on 13 April 2016, and that this sponsorship approval is valid until 13 April 2021.[5]
[5]T1, f.13
The applicant also provided evidence that Secret Kitchen Pty Ltd received approval for a nomination in respect of a ‘Cook’ (ANZSCO[6] 351411) with a base salary of $55,000, in his favour, on 21 February 2017.[7]
[6]ANZSCO: Australian and New Zealand Standard Classification of Occupations
[7]T1, f.8-11
Accordingly, the Tribunal finds that there is a nomination of an occupation in relation to the applicant, and that it has been approved under section 140GB of the Act at the time of decision. Therefore, the Tribunal finds that the requirements of subparagraph 457.223(4)(a)(i) are met at the time of decision.
In relation to subparagraph 457.223(4)(a)(ii), given that the Department approved Secret Kitchen Pty Ltd as a standard business sponsor for a 5-year period commencing on 13 April 2016 and ending on 13 April 2021, the Tribunal finds that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved on 21 February 2017. Therefore, the Tribunal finds that the requirements of subparagraph 457.223(4)(a)(ii) are also met at the time of decision.
Subparagraph 457.223(4)(a)(iii) requires the Tribunal to be satisfied that the nomination that was approved on 21 February 2017 has not ceased, as provided for in regulation 2.75, at the time of its decision. Subregulation 2.75(2) provides:
(2) An approval of a nomination ceases on the earliest of:
(a)the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and
(b)12 months after the day on which the nomination is approved; and
(c)the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and
(d)if the approval of the nomination is given to a standard business sponsor - 3 months after the day on which the person’s approval as a standard business sponsor ceases; and
(e)if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act - the day on which the person’s approval as a standard business sponsor is cancelled; and
(f)if the approval of the nomination is given to a party to a work agreement (other than a Minister) - the day on which the work agreement ceases.
The Tribunal observes that under subregulation 2.75(2), the approval of a business nomination ceases to have effect when the earliest of the events in paragraphs (a) to (f) occurs.
In this case there is little in the evidence to suggest that Secret Kitchen Pty Ltd, as the approved sponsor, has notified the Department in writing that it has withdrawn its nomination. Accordingly, the Tribunal finds that paragraph 2.75(2)(a) does not apply in this case.
The approval of the business nomination lodged by Secret Kitchen Pty Ltd for a Cook was granted on 21 February 2017. As a result, under paragraph 2.75(2)(b) the approval of this nomination ceases to have effect 12 months after this date. Therefore, at the time of its decision in March 2017, the Tribunal finds that the approval of the nomination has not ceased and paragraph 2.75(2)(b) also does not apply in this case.
In addition, as no subclass 457 visa has been granted to the applicant, as the person who was been proposed to be employed in respect of the nominated activity of a Cook, the Tribunal finds that paragraph 2.75(2)(c) does not apply in this case.
In relation to paragraph 2.75(2)(d), given that Secret Kitchen Pty Ltd was approved as a standard business sponsor on 13 April 2016 and that this approval is valid to 13 April 2021, the Tribunal finds that the sponsorship approval has not ceased at the time of its decision. Therefore, the Tribunal finds that paragraph 2.75(2)(d) does not apply.
As regards paragraph 2.75(2)(e), there is no evidence before the Tribunal that the approval granted to Secret Kitchen Pty Ltd as a standard business sponsor has been cancelled under subsection 140M(1) of the Act. Therefore, the Tribunal finds that paragraph 2.75(2)(e) does not apply.
In addition, there is little in the evidence to suggest that the approval of the nomination is to be given to a party to a work agreement, as required by paragraph 2.75(2)(f). Accordingly, the Tribunal finds that this provision also has no application in the present matter.
As a result, the Tribunal finds that the approved business nomination has not ceased under subregulation 2.75(2) at the time of decision in March 2017.
Accordingly, at the time of decision, the applicant is the subject of an approved nomination lodged by Secret Kitchen Pty Ltd, an approved standard business sponsor. As a result, the Tribunal finds that the requirements of subparagraph 457.223(4)(a)(iii) have been met at the time of its decision and, therefore, that the applicant satisfies paragraph 457.223(4)(a).
Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria.
DECISION
The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 457 visa:
·Paragraph 457.223(4)(a) of Schedule 2 to the Regulations.
Danica Buljan
Member

[2017] AATA 452

24 March 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Remedies

Jurisdiction