Gomez (Migration)

[2018] AATA 547

Gomez (Migration) [2018] AATA 547 (6 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rodel Infante Gomez
Mrs Rachel Garcia Gomez
Miss Luisa Andrea Garcia Gomez

CASE NUMBER:  1703313

DIBP REFERENCE(S):  BCC2015/3820904

MEMBER:John Cipolla

DATE:6 March 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 06 March 2018 at 2:57pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457(Temporary Work Skilled) – applicant was not the subject of an approved nomination – Sponsoring business subject of a sponsorship bar – Applicant failed to attend the rescheduled hearing

LEGISLATION

Migration Act 1958, ss 65, 140M
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 Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the visa on 11 December 2015.

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 visas on 9 February 2017 on the basis that cl.457.223(4)(a) was not met because the primary visa applicant (hereinafter referred to as the applicant) was not the subject of an approved nomination by a standard business sponsor.

5. The applicant lodged an application for review with the Tribunal on 24 February 2017. On 25 October 2017 the applicant was invited to attend a hearing scheduled for 13 November 2017. On 1 November 2017 the applicant’s representative contacted the Tribunal to advise the applicant was not able to attend the hearing on 13 November 2017 as his mother had passed away in late October 2017.  The Tribunal consented to the adjournment of the hearing.

6. On 3 November 2017 the Tribunal wrote to the applicant inviting the applicant to comment on information that the Tribunal considered could be the reason, or part of the reason, for affirming the decision under review. The Tribunal noted that the applicants sponsoring business was the subject of a sponsorship bar under s.140M(2) of the Migration Act which was in effect until 19 September 2021. The Tribunal noted that as a result of the sponsorship bar the applicants sponsor Meaningful Care Pty Ltd would not be able to successfully nominate the applicant for the position of Sales and Marketing Manager. The Tribunal noted that the information was relevant to the review because an approved nomination is required for the applicant’s Subclass 457 visa application to be successful and the applicant was not the subject of an approved nomination.

7. The Tribunal received a response from the applicant on 17 November 2017 which it has duly considered.  The response from the applicant states that the applicant was the subject of unscrupulous practices by the proprietor of the sponsoring business Synthia Rester. The applicant stated that as a result of this he hoped that the Tribunal could give him “another opportunity for future prospects”.

8. On 8 February 2018 the Tribunal wrote to the applicant inviting him to attend a rescheduled hearing on 6 March 2018. The applicant failed to attend the rescheduled hearing and no reason for the applicants non-attendance was provided to the Tribunal. In these circumstances the Tribunal is able to proceed to decision.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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

12. 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.

13. The applicant was sponsored by Meaningful Care Pty Ltd to work in the business in the position of Sales and Marketing Manager. The evidence before the Tribunal indicates that Meaningful Care had previously traded under the name MPJEL Care Pty Ltd and a search of ASIC records indicates that they are one in the same entity. The evidence before the Tribunal indicates that Meaningful Care Pty Ltd who had previously traded as MPJEL Care Pty Ltd was barred under section 140M (2) of the Migration Act from being an approved standard business sponsor until 19 September 2021.

14. There is no evidence before the Tribunal that the applicant is the subject of an approved nomination by a standard business sponsor.

15. For these reasons the requirements of cl.457.223(4)(a) are not met.

16. 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

17. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    John Cipolla
    Senior 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.