Guo (Migration)

[2020] AATA 5532

Guo (Migration) [2020] AATA 5532 (9 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rongyou Guo

CASE NUMBER:  1807554

DIBP REFERENCE(S):  BCC2017/1381893

MEMBER:Cathrine Burnett-Wake

DATE:9 November 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2020 at 11:26am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – no approved nomination – decision under review affirmed  

LEGISLATION

Migration Act 1958, s 65
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
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 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 14 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 visa on 27 February 2018 on the basis that cl.457.223(4)(a) was not met because there was no approved nomination in relation to the applicant.

5. The applicant was represented in relation to the review by his registered migration agent.

6. The applicant was invited to appear before the Tribunal; however, he declined the invitation to participate in the hearing preferring to rely on written submissions put forward by the representative, which the Tribunal received on 9 October 2020.

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. The submissions received by the Tribunal on 9 October 2020 outlined that the nomination application relating to the applicant was administratively finalised by the Department as the Sponsor was unable to obtain standard business sponsorship approval and that the Department finalised the nomination pursuant to policy and erred in doing so. Further, that given the introduction on 18 March 2018 of the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 a new application for approval of a nomination in support of the applicant’s Subclass 457 visa application can no longer be made.

11. It was contended by the representative that after a sponsorship application is refused, it would be premature for the Department to administratively finalise the related nomination application prior to having the sponsorship’s review determined by the Tribunal. The representative acknowledged in the submissions that it is understood that the Tribunal is not provided with jurisdiction to compel the Department to have the administratively finalised nomination revived prior to the current visa refusal review being considered. However, it was submitted that the applicant holds the belief that the Court will have such a jurisdiction and a separate application brought against the Minister by another of the Sponsor’s nominee’s is currently awaiting an outcome from the Federal Circuit Court of Australia, which include that Court orders are sought, inter alias, to direct the Minister to revive another administratively finalised nomination application. As such, it was submitted there are implications for the current review application as it is contended that the principles of the Court matter outcome will likely be applied in a similar manner to this review. The applicant sought that this review be stayed, until an outcome of the Court hearing and a determination of the lawfulness of a delegate administratively finalising a nomination application is made.

12. Regarding the request for the Tribunal to delay its decision until an outcome of the Federal Circuit Court of Australia relating to a separate application brought against the Minister by another of the Sponsor’s nominee’s, the Tribunal does not speculate in relation to matters of appeal and considers that it is bound to deal with cases expeditiously and efficiently based on the information before it, as is required by the guidelines of good practice.

13. The Tribunal’s task in this review is to determine, in accordance with cl.457.223(4)(a), whether a nomination of an occupation in relation to the applicant has been approved.

14. As the representative pointed out in their submission, the Tribunal has no jurisdiction to compel the Department to have the administratively finalised nomination revived. As it stands, and as is conceded, there is currently no approved nomination in relation to the applicant.

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 visa applicant a Temporary Business Entry (Class UC) visa.

    Cathrine Burnett-Wake
    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.