Clement (Migration)

[2019] AATA 2241

Clement (Migration) [2019] AATA 2241 (29 May 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Charles-Alexandre Clement

CASE NUMBER:  1713158

HOME AFFAIRS REFERENCE:               BCC2016/3864189

MEMBER:  Lilly Mojsin

DATE:  29 May 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)( ) of Schedule 2 to the Regulations.

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Statement made on 29 May 2019 at 9:18am

CATCHWORDS
Temporary Business Entry (Class UC) visa – Subclass 457 – Standard Business Sponsorship– Film and Video Editor– nomination approved – subject of an approved nomination – genuine position – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75, Schedule 2, cl 457.223

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).

1. The visa applicant applied for the visa on 17 November 2016.

1. 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 that 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), set out in the attachment to this decision. In the present review, specific claims have been made against cl.457.223(4) that 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.

1. The delegate refused to grant the visa on 1 June 2017 on the basis that cl.457.223(4)(a) was not met because the visa applicant was not the subject of an approved nomination.

1. The applicant appeared before the Tribunal on 23 May 2019 to give evidence and present arguments.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present review is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

1. 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.

1. Information obtained from the Department's records indicates that Milk Crate Productions Pty Ltd, obtained sponsorship approval from the Department, as a standard business sponsor, on 26 April 2017 and expiring 26 April 2022.

1. On 29 April 2019 the Tribunal set aside the decision under review not to approve the nomination by Milk Crate Productions Pty Ltd of the nominee, Charles-Alexandre Clement, for the position of Film and Video Editor (ANZSCO 212314) and substituted a decision approving the nomination.

1. On the basis of this evidence, the Tribunal finds that a nomination of the occupation of Film and Video Editor in relation to the applicant was approved under s.140GB of the Act and that this nomination was made by Milk Crate Productions Pty Ltd. Milk Crate Productions Pty Ltd was approved as a Standard Business Sponsor at the time of the nomination approval. The Tribunal also finds that the nomination has not ceased as provided for in r.2.75, as there is no evidence before the Tribunal to indicate that any of the circumstances specified in r.2.75 as leading to the cessation of the nomination have occurred.

1. The Tribunal finds that the visa applicant meets cl.457.223(a).

1. 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

1. The Tribunal remits the application for Temporary Business Entry (Class UC) visa 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.

Lilly Mojsin Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship
…

1. 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.

   …

1. 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.

…

1. 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.