Farnell (Migration)

[2018] AATA 2258

Farnell (Migration) [2018] AATA 2258 (14 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dean Stephen Farnell

CASE NUMBER:  1609917

DIBP REFERENCE(S):  BCC2016/606747

MEMBER:Mary Sheargold

DATE:14 May 2018

PLACE OF DECISION:  Melbourne

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 14 May 2018 at 4:31pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – 457 (Temporary Work (Skilled)) – Whether the applicant is the subject of an approved nomination – Applicant is subject of an approved nomination – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75, 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 February 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 visa on 20 June 2016 on the basis that cl.457.223(4)(a) was not met because there was no approved nomination in accordance with s.140GB of the Act.

5. The applicant was represented in relation to the review by his registered migration agent, who provided written submissions to the Tribunal dated 30 March 2018.  In brief, the submissions set out that the applicant is now the subject of an approved nomination.

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)(i) requires that a nomination of an occupation in relation to the applicant has been approved under s.140GB of the Act.

9. The applicant has provided the Tribunal with a Notice of Decision: Nomination Approval. The Notice of Decision sets out that on 23 February 2018, the delegate of the Minister approved a nomination application made by Advanced Veterinary Care Pty Ltd in relation to the applicant for him to be employed in the role of Veterinary Nurse in its business, in accordance with s.140GB of the Act. Accordingly, the Tribunal finds that the requirements of cl.457.223(4)(a)(i) are met.

10. Clause 457.223(4)(ii) requires that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved.  There is evidence before the Tribunal demonstrating that Advanced Veterinary Care Pty Ltd was approved as a standard business sponsor for a period of 5 years commencing on 14 February 2018.  As such, Advanced Veterinary Care Pty Ltd was a standard business sponsor at the time the nomination application was approved on 23 February 2018, and the Tribunal finds that the requirements of cl.457.223(4)(a)(ii) are met.

11. Clause 457.223(4)(a)(iii) requires that the approval of the nomination has not ceased as provided for in r.2.75 of the Regulations. Subregulation 2.75(2) provides:

    (2)       An approval of a nomination ceases on the earliest of:

    (a)the day on which Immigration receives notification, in writing, of the withdrawal of the nomination by the approved sponsor; and

    (b)       12 months after the day on which the nomination is approved; and

    (c)the day on which the applicant, or the proposed applicant, for the nominated occupation, is granted a Subclass 457 (Temporary Work (Skilled)) visa; and

    (d)if the approval of the nomination is given to a standard business sponsor – 3 months after the day on which the person’s approval as a standard business sponsor ceases; and

    (e)if the approval of the nomination is given to a standard business sponsor, and the person’s approval as a standard business sponsor is cancelled under subsection 140M(1) of the Act – the day on which the person’s approval as a standard business sponsor is cancelled; and

    (f)if the approval of the nomination is given to a party to a work agreement (other than a Minister) – the day on which the work agreement ceases.

12. The Tribunal observes that under subregulation 2.75(2), the approval of a business nomination ceases to have effect when the earliest of the events in paragraphs (a) to (f) occurs.

13. There is no evidence before the Tribunal to suggest that Advanced Veterinary Care Pty Ltd, as the approved sponsor, has notified the Department in writing that it has withdrawn its nomination.  Accordingly, the Tribunal finds that paragraph 2.75(2)(a) does not apply in this case.

14. The approval of the business nomination lodged by Advanced Veterinary Care Pty Ltd for a Veterinary Nurse was granted on 23 February 2018.  As a result, under paragraph 2.75(2)(b), the approval of this nomination ceases to have effect on 12 months after this date.  Therefore, at the time of its decision in May 2018, the Tribunal finds that the approval of the nomination has not ceased and paragraph 2.75(2)(b) does not apply in this case.

15. In addition, as no Subclass 457 visa has been granted to the applicant, as the person who was proposed to be employed in respect of the nominated activity of Veterinary Nurse, the Tribunal finds that paragraph 2.75(2)(c) does not apply in this case.

16. Advanced Veterinary Care Pty Ltd was approved as a standard business sponsor on 14 February 2018 for a period of 5 years, ceasing on 14 February 2023.  The Tribunal finds that, for the purposes of paragraph 2.75(2)(d), the sponsorship approval has not ceased at the time of the Tribunal’s decision, and so the Tribunal finds that paragraph 2.75(2)(d) does not apply.

17. There is no evidence before the Tribunal that the approval granted to Advanced Veterinary Care Pty Ltd as a standard business sponsor has been cancelled under subsection 140M(1) of the Act.  Therefore, the Tribunal finds that paragraph 2.75(2)(e) does not apply.

18. There is no evidence to suggest that the approval of the nomination is to be given to a party to a work agreement, as required by paragraph 2.75(2)(f).  Accordingly, the Tribunal finds that paragraph 2.75(2)(f) does not apply.

19. The Tribunal finds that the approved business nomination has not ceased under subregulation 2.75(2) at the time of its decision.  Accordingly, the Tribunal is satisfied that at the time of its decision, the applicant is the subject of an approved nomination lodged by Advanced Veterinary Care Pty Ltd, an approved standard business sponsor.

20. As a result, the Tribunal finds that the requirements of subparagraph 457.223(4)(a)(iii) have also been met at the time of its decision, and, therefore, that the applicant satisfies paragraph 457.223(4)(a).

21. 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

22. 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.

    Mary Sheargold
    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.