Chokshi (Migration)

[2019] AATA 1015

Chokshi (Migration) [2019] AATA 1015 (14 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dhruv Roopak Chokshi

CASE NUMBER:  1710629

DIBP REFERENCE(S):  BCC2016/3217557

MEMBER:Mr S Norman

DATE:14 February 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

Statement made on 14 February 2019 at 12:25pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – nomination application approved – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, rr 2.70, 2.75, Schedule 2, cls 457.223, 457.321

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). The Department delegate’s decision was lodged with the Tribunal.

2. The visa applicant applied for the visa on 28 September 2016. 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.

3. The delegate refused to grant the visa on 1 May 2017 on the basis that cl.457.223(4)(a) was not met because the related nomination approval application had been refused.

4. The applicant/nominee (Mr Dhruv Roopak Chokshi) appeared before the Tribunal on 7 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Kamal Verma (Director of Nirskam Hotels Pty Ltd – the nominator).

5. The applicant was represented in relation to the review by his registered migration agent.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the primary visa 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. That clause stated:

   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;

9. In their decision, the delegate noted that by letter of 11 January 2017, the applicant was advised the nominator’s nomination application was refused. The applicant was given an opportunity to comment or withdraw the application. Amongst other things, the applicant had lodged an employment contract;[1] evidence of medical insurance;[2] IELTS test results;[3] a letter from Quest Hotels;[4] and submissions relating to ‘compliance with r.2.70’.[5] However, no material response to the abovementioned Department letter was lodged.

   [1] Department – from folio 79.

   [2] Department – folio 56.

   [3] Department – folio 53.

   [4] Department – folio 33.

   [5] Department - from folio 32.

10. Accordingly, the delegate said that at the time of their decision a nomination application had not been approved. Therefore the applicant did not meet cl.457.223(4)(a) (or cl.457.223(4)). The delegate then refused to grant the applicant a Temporary Work (Skilled) (subclass 457) visa.

11. The delegate then considered cl.457.321 (member of the family unit). However, as there were no secondary applicants, the applicant did not qualify for the grant of the visa on this basis.

12. That being said, by decision of 14 February 2019, the Tribunal approved the nomination application lodged by the applicant’s nominator (Nirskam Hotels Pty Ltd). Accordingly, as cl.457.223(4)(a) of the Regulations is a “Criteria to  be satisfied at time of decision”, and as the Tribunal has approved the nomination application, then the Tribunal finds the applicant meets clause 457.223(4)(a) of the Regulations.

13. For these reasons the requirements of cl.457.223(4)(a) are met.

14. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

15. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

    Mr S Norman
    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.