COSTA BATISTA (Migration)

[2020] AATA 3867

COSTA BATISTA (Migration) [2020] AATA 3867 (16 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr CAIO COSTA BATISTA

CASE NUMBER:  1901569

DIBP REFERENCE(S):  BCC2018/854350

MEMBER:Alan McMurran

DATE:16 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 16 July 2020 at 11:39am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Occupation of Solid Plasterer – no approved nomination – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 140, 359
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 23 January 2019 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).

2. The visa applicant applied for the visa on 22 February 2018.

3. 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.

4. The delegate refused to grant the visa on 21 January 2019 on the basis that cl.457.223(4)(a)(i) was not met because the nomination application for the applicant for the occupation of solid plasterer was not approved under section 140GB of the Act. The nomination by One Coat Set Plaster Pty Ltd (the nominator), was refused by the Department on 19 November 2018.

5. On 9 June 2020, the Tribunal conducted a combined telephone hearing for review of the refused nomination application. The hearing included a review of the nomination for the visa applicant. The Tribunal heard evidence from the nominator’s director, Ms Vera Silva (the director).

6. On lodgement of the application with the Department and then with the Tribunal, the applicant was represented by an agent. On 25 May 2020, the Tribunal was advised that the applicant was represented in relation to the review by the director. The director appeared on behalf of the applicant at the hearing and gave evidence. The applicant was available by telephone but was not called upon.

7. On 30 June 2020 the Tribunal affirmed the decision not to approve the nomination for the visa applicant’s occupation.

8. On 1 July 2020, the Tribunal sent a letter under section 359A of the Act to the applicant informing him that the nomination had been refused and inviting him to comment or respond by 15 July 2020. The Tribunal did not receive any response from the applicant and has proceeded to determine this matter on the information presently available.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a)(i). The Tribunal has available for its review the Tribunal’s case file, and the file for the nominator, together with the information from the Department files.

11. The Tribunal also has available the information provided by the witness at the hearing conducted on 9 June 2020 and a submission made 11 June 2020 by the director.[1]

    [1] Related case file 1834483

    Requirement for an approved nomination

12. 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.

13. On 30 June 2020, the Tribunal affirmed a decision of the Department not to approve the nomination of the visa applicant for the position of solid plasterer.

14. The Tribunal finds therefore that the applicant is not the subject of an approved nomination for the occupation nominated.

15. The Tribunal finds that the review of the nomination refusal has been completed by the Tribunal and the decision affirmed. There is no information available to the Tribunal that indicates there is any other nomination application in consideration for the visa applicant or pending, or under review. The Tribunal has heard nothing further from the visa applicant and is satisfied he has been made aware of the decision and provided with a reasonable opportunity to respond.

16. For these reasons the requirements of cl.457.223(4)(a) are not met.

    Summary

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

    DECISION

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

    Alan McMurran
    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.