El Ghoul (Migration)

[2017] AATA 2018

El Ghoul (Migration) [2017] AATA 2018 (5 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Firas El Ghoul

CASE NUMBER:  1601833

DIBP REFERENCE(S):  BCC2014/2283194

MEMBER:Alan McMurran

DATE:5 October 2017

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)(a) of Schedule 2 to the Regulations.

.

Statement made on 05 October 2017 at 12:24pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Sponsorship for employment by standard business sponsor – Not the subject of approved nomination – Evidence provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223 (4)(a)

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).

2. The visa applicant applied for the visa on 11 September 2014.

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 28 January 2016 on the basis that cl.457.223(4)(a) was not met because the applicant had been unable to confirm an approved nomination by the sponsor, ACE Demolition & Excavation Proprietary Limited.

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

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

   BACKGROUND

7. The visa applicant applied for the position of Systems Administrator (ANZSCO 262113) with the sponsor, ACE Demolition & Excavation Pty Ltd on 11 September 2014. That application was refused by the Department delegate on 12 November 2014 on the basis the visa applicant had not demonstrated he has the skills at a commensurate level to successfully perform the approved nomination occupation, and which decision was the subject of a review in the Tribunal in proceedings case number 1419691.

8. On 12 October 2015, the Tribunal determined upon review to remit the matter to the Department on the basis the applicant had then met the relevant criteria that he has demonstrated he has the skills necessary to perform the occupation in the manner specified by the Minister for the nominated occupation.

9. Following the remittal to the Department in Tribunal Case number 1419691, a further decision issued from the Department on 28 January 2016 in relation to this application refusing the application on the basis the visa applicant was not the subject of a nomination in relation to the applicant which has been approved under section 140 GB of the Act.

10. Prior to that decision, the Department had written to the visa applicant on 19 October 2015 advising the applicant the application was being processed and attaching a summary of information required.

11. On 15 December 2015, the Department sent a follow-up letter to the visa applicant informing him of adverse information received following checks performed by the Department on the information provided in the application. The letter advised the visa applicant that the prospective employer, ACE Demolition &Excavation Pty Ltd, was not the subject of an approved nomination as at that date.

12. The visa applicant did not provide a response to the Department’s letter within the requested 28 day period and the Department proceeded to a decision on 28 January 2016, refusing the application on the basis there was no approved nomination. The visa applicant then lodged this application for review on 16 February 2016.

13. On 14 September 2017, the Tribunal sent a letter to the visa applicant inviting the applicant to attend a hearing on 18 October 2017 at 11:30 am. The representative for the visa applicant responded by email on 14 September 2017, making further submissions and attaching documents and requesting that the Tribunal makes a determination on the papers. The hearing date appointed was then cancelled.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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

15. 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.

16. On 14 September 2017, the representative for the Visa applicant sent an email to the Tribunal advising that the Visa applicant “is now subject to an approved nomination which was approved on 6/12/2016 and is still valid until 6/12/2017.” The representative noted that this was the “core issue” for the review and in respect of which the Tribunal now has sufficient information to deal with the application on the papers.

17. The Tribunal has verified the letter from the Department dated 6 December 2016 addressed to the business sponsor, ACE Demolition & Excavation Proprietary Limited, with the copy of the letter provided on the Tribunal’s file and advising that the nomination has been approved on 6 December 2016 in respect of the named visa applicant, Firas El Ghoul.

18. The Visa applicant has therefore now met the requirements in 457.223 (4)(a) in that there is a nomination of an occupation in relation to the visa applicant which has been approved under section 140 GB of the Act, the nomination was made by a person (Ace Demolition & Excavation Pty Ltd) who was a standard business sponsor at the time the nomination was approved, and the approval of the nomination has not ceased as provided for in Regulation 2.75.         

19. For these reasons the requirements of cl.457.223(4)(a) are met.

20. 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

21. 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)(a) of Schedule 2 to the Regulations.

    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.