Grewal (Migration)

[2020] AATA 4906

Grewal (Migration) [2020] AATA 4906 (16 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sukhwant Singh Grewal
Mrs Sonika Grewal

CASE NUMBER:  1820773

DIBP REFERENCE(S):  BCC2017/1359166

MEMBER:Michelle East

DATE:16 October 2020

PLACE OF DECISION:  Perth

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

Statement made on 16 October 2020 at 11:30am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – subject of an approved nomination – nomination withdrawn – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 12 April 2017.

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 28 June 2018 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination.

5. The applicant appeared before the Tribunal on 16 October 2020 to give evidence and present arguments.

6. The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of the matter and the individual circumstances of the applicant.  The Tribunal also had regard to its objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not conducted this way.

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

   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).

   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. A review of the Tribunal’s records demonstrates that the applicant’s sponsor applied for approval of its nomination on 16 March 2018.  A decision was made on 28 May 2018 refusing that nomination and on 15 June 2018 the nominator sought review with the Tribunal.  The nominator subsequently withdrew its application on 4 August 2020.

11. On 13 August 2020 the Tribunal wrote to the applicants pursuant to s359A of the Act inviting them to comment on or respond to certain information which we considered would be the reason or part of the reason for affirming the decision under review.  The particulars of the information were given as follows:

    On 4 August 2020 the nomination lodged by SHUA TRANSPORT PTY LTD, being the nomination for the purposes of your visa application, was withdrawn by the nominator.

    Information before us suggests that the nomination for the position identified in your visa application was not approved.

    The above information is relevant because cl.457.223(4)(a) requires that there is an approved nomination of an occupation relating to you by a standard business sponsor that has not ceased.

12. The applicant responded to the Tribunal on 27 August 2020 as follows:

    I was sponsored on the position by Shua Transport Pty Ltd for which nomination was recently withdrawn by the employer.

    I applied for the review on the basis of that.  I was hopeful that once nomination is approved, I shall be able to continue with Shua Transport Pty Ltd.  Though it’s shocking to know that they have withdrawn the nomination application on 4^th August 2020.

    It’s a sudden change in the situation for me and I hereby request the Member of the Tribunal to given me time to find suitable employer for myself for the nomination under the position, as I have skills for the position and I am confident that I can secure a position.

    I hereby request the review officer to please consider my request to grant me extension to find a new employer for the nomination, under these hard times of covid 19, so I can have a fair chance. (sic)

13. The Tribunal spoke with the applicant at the hearing and explained the requirements of the legislation.  The Tribunal asked the applicant what he wished to submit and he said that the withdrawal of his sponsor’s application took him by surprise.  He said that there had been a downturn in the business due to the Covid-19 pandemic and he wasn’t working as much.  He said he wanted more time to find a new sponsor if possible.  The Tribunal asked him whether he had made any positive efforts to find further employment but he wasn’t able to provide any examples of any enquiries he had made.

14. The Tribunal notes that the applicant lodged his visa application in April 2017 and it was refused in June 2018.  The applicant has also been aware since August 2020 that his sponsor no longer supported him.  Even though the Tribunal is sympathetic to the applicant’s circumstances, it still considers he has had ample time to consider his employment situation.

15. After considering all of the evidence, including that of the applicant given orally at the hearing, the Tribunal has no alternative but to find that the nomination mentioned in clause 457.223(4)(a) has not been approved at the time of the Tribunal’s decision.

16. In this matter the applicant is not the subject of an approved nomination under section 140GB of the Act and therefore the requirements of cl.457.223(4)(a) are not met.

17. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 457 visa as she does not meet the secondary visa criteria to be a member of the family unit of a person who holds a subclass 457 visa and there is no evidence that she meet the primary visa criteria for this subclass in her own right.

18. 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

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

    Michelle East
    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.