DHILLON (Migration)

[2018] AATA 3157

DHILLON (Migration) [2018] AATA 3157 (31 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shamsher Singh DHILLON
Master Ekamjeet Singh Dhillon
Mrs Amandeep KAUR

CASE NUMBER:  1621443

DIBP REFERENCE(S):  BCC2016/425681

MEMBER:Danielle Galvin

DATE:31/7/18

PLACE OF DECISION:  Melbourne

(A)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:

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

Statement made on 31 July 2018 at 12:15pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Approved nomination by a Standard Business Sponsor – Tribunal set aside nomination refusal – Decision remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 28 January 2016.

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 visas on 1 December 2016 on the basis that cl.457.223(4) because, at that time, the primary applicant, Shamsher Singh Dhillon,,was not the subject of an approved nomination and therefore the requirements of cl.457.223(4)(a) of the Regulations were not met. The delegate further found that Mr Dhillon failed to meet the secondary criteria for a subclass 457 visa as he was not a member of a family unit of a person who holds a Subclass 457 visa under cl.457.321.

5. The applicants were represented in relation to the review by their 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 under section 140GB of the Act and that it has been made by a standard business sponsor ( at the time of the nomination) and that the approval of that nomination has not ceased.

9. Ashwood Transport Pty Ltd was awarded standard business sponsorship from 26 April 2016 until 25 April 2021and such sponsorship rights have not ceased.

10. On 31 October 2016, Mr Dhillon was informed that his prospective sponsoring employer, ASHWOOD TRANSPORT PTY LTD did not have an approved nomination in place. and therefore did not satisfy the requirements of cl.457.223(4)(a).

11. On 4 October 2016 the sponsoring employer sought a review of the Department decision and on 16 July 2018 the Tribunal set aside and substituted a decision that the nomination is approved.

12. ASHWOOD TRANSPORT PTY LTD, in its application for nomination, had nominated the position of Transport Company Manager, ANZSCO 149413.

13. A nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act, the nomination was made by a company that is a standard business sponsor at the time that the nomination was approved and the approval of the nomination has not ceased. For these reasons the requirements of cl.457.223(4)(a) are met.

14. Ms Amandeep Kaur is Mr Dhillon’s wife and Master Ekamjeet Singh Dhillon is the couple’s son. Both are secondary applicant’s to Mr Dhillon’s application. The Department had refused their application on the basis that Mr Dhillon had not been successful in his primary application and therefore they then failed to satisfy the requirements of 457..321

15. 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.

16. 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:

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

    Danielle Galvin
    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.