Geagea (Migration)

[2022] AATA 3005

Geagea (Migration) [2022] AATA 3005 (22 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Anthony Geagea

REPRESENTATIVE:  Mr Ray Turner

CASE NUMBER:  1900585

HOME AFFAIRS REFERENCE(S):          BCC2018/388569

MEMBER:Ian Berry

DATE:22 July 2022

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 22 July 2022 at 4:18pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Standard Business Sponsor stream – no approved nomination of an occupation in respect of the applicant– decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 23 January 2018.

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 (Cth) (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 8 January 2019 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of a nomination of an occupation which had been approved under s.140GB.

5. The applicant was represented in relation to the review.

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

   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) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. On 7 July 2022, the Tribunal affirmed the delegate’s decision of the nomination by Rock Form Group Pty Ltd., of which the applicant was the identified nominee in that nomination application.

   Invitation to comment or respond - s.359A

10. On 11 July 2022 the Tribunal wrote to the applicant under s.359A of the Act, inviting the applicant to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The Tribunal’s letter invited the applicant to comment on or respond to the following information:

    ‘On 24 July 2018, you lodged an application for a 457 visa with the Department of Home Affairs (then Department of immigration and Border Protection) (the Department).
    On 11 October 2018, the nominator Rock Form Group Pty Ltd had its nomination application refused by the Department. The nominator lodged an application for review of this decision with the Tribunal on 29 October 2018.
    On 7 July 2022, the Tribunal affirmed the Department’s decision to refuse the nomination.
    This information is relevant to the review because if the primary applicant cannot satisfy the criterion in cl. 457.223(4)(a) then the visa application cannot be granted.
    If we rely on this information in making a decision, we may affirm the decision made by the Department.
    You are invited to give comments on or respond  to the above information in writing.
    Your comments or response should be received by 25 July 2022…’

11. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 25 July 2022, the Tribunal may make a decision on the review without taking further steps to obtain the comments and the applicant would lose any entitlement the applicant might otherwise have had under the Act to appear before the Tribunal to give evidence and present arguments and for the Tribunal to proceed to make its decision.

12. The applicant has provided the comments within the prescribed period. The applicant’s email dated 21 July 2022 state the following:

    Application for review-Mr Anthony Geagea in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.

    We are instructed not to make submissions in this matter and accordingly request the decision be affirmed.…

    Yours truly,
    Turner Colson Immigration Lawyers
    Emma Hungerford Espino
    Senior Consultant

13. For these reasons, the Tribunal proceeded to make its decision that the requirements of cl 457.223(4)(a) are not met.

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

    decision

15. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Ian Berry
    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.