DIAS DA SILVA (Migration)

[2017] AATA 2921

DIAS DA SILVA (Migration) [2017] AATA 2921 (14 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jackson Dias da Silva
Ms Flavia Corredato Cabral

CASE NUMBER:  1702915

DIBP REFERENCE(S):  BCC2015/3153176

MEMBER:Wan Shum

DATE:14 December 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 14 December 2017 at 3:07pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – No nomination approved for position of Programmer Developer – Applicant had three previous nominations refused – New prospective employer seeking nomination

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 28 October 2015.

3. 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. In the present case, specific claims have been made against the ‘standard business sponsorship’ stream which requires sponsorship for employment in an occupation by a standard business sponsor: cl.457.223(4). 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 31 January 2017. The delegate found that the first named applicant was not the subject of an approved nomination and did not meet the requirements of cl.457.223(4)(a). The delegate also found that the second named applicant did not meet relevant criteria for the grant of the visa.

5. The applicants applied for review of that decision and are represented in relation to the review by a registered migration agent.

6. The applicants appeared before the Tribunal on 15 November 2017. Only the first named applicant gave evidence and presented arguments in relation to the issue in dispute. The representative also attended.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the first named applicant (the applicant) meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

9. 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.

10. At the hearing, the applicant told the Tribunal that there had already been 3 nominations linked to his visa application by the same prospective employer, his own company named JD Technology Pty Ltd. He confirmed that each of them had been refused. The applicant said he had a new prospective employer who was willing to sponsor him whom he had been working for since April 2017. According to submissions provided prior to the hearing, the applicant has been nominated for the same position of Programmer Developer and evidence has been provided of a nomination application lodged with the department on 13 November 2017, two days before the hearing. The applicant has requested that the Tribunal wait until a decision on the nomination application has been made.

11. The Tribunal has considered the request to delay its decision. However, it has decided to proceed to a decision in this case. It notes that the applicant lodged the Subclass 457 visa application over two years ago and there has already been 3 nomination applications in relation to him refused. At the time the application for review was lodged, a decision on the third nomination had not yet been made by the Department. However, a decision has since been made to refuse that application.

12. The current nomination is the fourth application made in relation to the applicant, and while it has been lodged by a different sponsor to the previous three applications, the Tribunal has taken into account that the nomination can be decided whether or not the applicant remains in Australia. The applicant claims to have been working for that employer since April but the application to the Department for the nomination was not made until two days before the hearing. The Tribunal was not given an indication of how long it will take to process the nomination and, while it was submitted that the employer was well-established and it was suggested that the application would be successful, it is not known whether this would be the case. If it is successful, the applicants can make new applications for Subclass 457 visas offshore and their ability to satisfy the criteria for that visa can be assessed at that point. Having considered these matters, the Tribunal advised the applicants and their representative that it would be proceeding to a decision.

13. As there is no current approved nomination in relation to the applicant, the applicant does not meet the requirements of cl.457.223(4)(a)(i).

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

    DECISION

15. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Wan Shum
    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.