FAROOQ (Migration)

[2021] AATA 2414

FAROOQ (Migration) [2021] AATA 2414 (24 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Umer FAROOQ

CASE NUMBER:  1814690

DIBP REFERENCE(S):  BCC2018/464095

MEMBER:Susan Trotter

DATE:24 June 2021

PLACE OF DECISION:  Brisbane

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 24 June 2021 at 4:50pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – nomination approved upon review – occupation of Cook – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75; 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 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 28 January 2018 seeking to work in the nominated occupation of Cook (ANZSCO code 351411) for Raf Partners Pty Ltd.

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 1 May 2018 on the basis that cl.457.223(4)(a) was not met because the nomination application lodged by Raf Partners Pty Ltd was refused by the Department on 29 March 2018 meaning that the applicant was not the subject of an approved nomination as required.

5. The application lodged an application with the Tribunal on 21 May 2018 seeking review of the delegate’s decision.

6. The applicant appeared before the Tribunal on 11 March 2021 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

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. The issues to be determined by the Tribunal are therefore:

    (a)  Is there is a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act? And, if so,

    (b)  Was the nomination was made by a person who was a standard business sponsor at the time the nomination was approved? And, if so,

    (c)   Has the approval of the nomination not ceased as provided for in r.2.75?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 - Is there is a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act?

11. The first-named applicant was nominated by Raf Partners Pty Ltd for the occupation of Cook (ANZSCO code 351411). The nomination application was refused by the Department of Immigration and consequently the visa application was refused.

12. On 24 June 2021, the Tribunal set aside the Department’s decision and approved the nomination[1].

    [1] Tribunal file no 1811161

13. Clause 457.223(4)(a)(i) is therefore met.

    Issue 2 - Was the nomination was made by a person who was a standard business sponsor at the time the nomination was approved?

14. Records of the Department confirm that Raf Partners Pty Ltd was approved as a standard business sponsor on 29 March 2018 for a period of five years until 29 March 2023. The nomination was therefore made by a person who was a standard business sponsor at the time the nomination was approved.

15. Clause 457.223(4)(a)(ii) is therefore met.

    Issue 3 - Has the approval of the nomination not ceased as provided for in r.2.75?

16. Clause 457.223(4)(a)(iii) requires the Tribunal to consider whether the approval of the nomination has ceased as provided for in r.2.75(2) as in force immediately prior to 18 March 2018.

17. None of the specified occurrences, upon which a nomination ceases, listed in r.2.75(2) apply. The Tribunal is therefore satisfied that the nomination has not ceased. Clause 457.223(4)(a)(iii) is therefore met.

    Conclusion

18. As all the subparagraphs of cl.457.223(4)(a) have been met, the applicant meets cl.457.223(4)(a).

19. 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

20. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

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

    Susan Trotter
    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.