Doungpan (Migration)

[2020] AATA 4904

Doungpan (Migration) [2020] AATA 4904 (24 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Maytawee Doungpan
Mr Jatupol Plaitho

CASE NUMBER:  1817469

HOME AFFAIRS REFERENCE(S):          BCC2017/745798

MEMBER:Katie Malyon

DATE:24 November 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 24 November 2020 at 10:20 am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Hotel or Motel Manager – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visas on 24 February 2017.  The delegate refused to grant the visas on 28 May 2018.

2. The delegate made the decision to refuse the visa application on the basis that cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the primary applicant, Thai national Ms Maytawee Doungpan, was not the subject of an approved nomination by approved standard business sponsor FAL Construction Group Pty Ltd (the Company).

3. The Tribunal held a combined hearing of both the delegate’s refusal of the Company’s nomination (File No. 1803857) and refusal of the applicants’ related Subclass 457 visas on 6 November 2020.  The hearing was held by way of MS Teams videoconference in light of the COVID-19 pandemic.  

4. The General Manager of the Company, Ms Toni Dibb, appeared before the Tribunal to give evidence and present arguments on behalf of the Company and Ms Doungpan’s prospective employer, the Company’s related entity Moonpac Pty Ltd.  Independent oral evidence was also received from Ms Doungpan.  The hearing was conducted in the presence of an interpreter in the Thai and English languages: however, the Tribunal notes Ms Doungpan did not use the interpreter at all.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

7. 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.

8. On 24 November 2020, the Tribunal approved the nomination made by the Company in respect of nominee Ms Maytawee Doungpan for the nominated occupation of Hotel or Motel Manager ANZSCO 141311. Accordingly, the requirements of cl.457.223(4)(a) of the Regulations are met.

9. Given this finding above, the appropriate course is to remit Ms Doungpan’s application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

10. The second named applicant applied for his visa on the basis of being a member of the family unit of Ms Doungpan.  Accordingly, his application will be determined by reference to the outcome of Ms Doungpan’s application on remittal to the Department for reconsideration.

    DECISION

11. 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.

    Katie Malyon

    
    Member