Hans (Migration)

[2022] AATA 2242

Hans (Migration) [2022] AATA 2242 (30 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bharpoor Singh Hans
Mrs Maninder Kaur Hans
Miss Gunreet Kaur Hans

CASE NUMBER:  1835994

HOME AFFAIRS REFERENCE(S):          BCC2017/3000926

MEMBER:Glenn O'Brien

DATE:30 June 2022

PLACE OF DECISION:  Brisbane

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

Statement made on 30 June 2022 at 6:31am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Customer Service Manager – subject of an approved nomination – 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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 21 August 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 (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 visas on 26 November 2018 on the basis that cl 457.223(4)(a)(i) was not met because a nomination of an occupation in relation to the applicant has not been approved.

5. The applicants appeared before the Tribunal on 11 November 2021 to give evidence and present arguments.

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)(i).

   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 13 June 2022, the Tribunal affirmed the decision to refuse a nomination application lodged by Malwai Pty Ltd for the position of Customer Service Manager corresponding to ANZSCO 149212 in relation to the applicant.

10. Following the review hearing, on 15 June 2022, the Tribunal wrote to the applicant pursuant to s. 359A of the Act inviting the applicant to provide comments on, or response to, the following information:

    I am writing on instruction from the Member conducting your review, in relation to the

    applications for review made by you in respect of decisions to refuse to grant
    Temporary Business Entry (Class UC) visas.

    In conducting the review, we are required by the Migration Act 1958 to invite you to
    comment on or respond to certain information which we consider would, subject to
    your comments or response, be the reason, or a part of the reason, for affirming the
    decisions under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·On 13 June 2022, the Tribunal affirmed the decision to refuse a nomination

    application lodged by Malwai Pty Ltd.

    This information is relevant to the review because you were the identified, prospective
    nominee. As this nomination application has been refused, you may be unable to meet
    cl 457.223(1) of Schedule 2 to the Migration Regulations, as you are not subject to an
    approved nomination under s 140GB of the Act.

    If we rely on this information in making our decision, we may find that you are unable
    to meet cl 457.223(1), as you are not subject to an approved nomination, and affirm
    the decision under review, as cl 457.223 is a primary criterion that must be met at the
    time of decision.

    You are invited to give comments on or respond to the above information in writing.
    Your comments or response should be received by 29 June 2022. If the comments or
    response are in a language other than English, they must be accompanied by an
    English translation from an accredited translator.

    If you cannot provide your written comments or response by 29 June 2022, you may
    ask us for an extension of time in which to provide the comments or response. If you
    make such a request, it must be received by us by 29 June 2022 and you must state

11. On 29 June 2022 the applicant provided a response to the Tribunal in the following terms:

    I am writing this email in response of your email, I have been out of Brisbane due to the nature of my work. I am an interstate multi-combination truck driver and I drive from Brisbane to Perth most of the times. I have come back to Brisbane today, after being away for two weeks, and got time to respond. So, please pardon me for responding at the end of the stipulated time.

    I came to Australia as a student in October, 2013. I have obtained Diploma in Business management and an advanced Diploma in the same stream as well. Then I full filled the English language requirements and job requirements and applied for a 457 visa. I always believed that Australian culture is very tight knitted with the fabric of families supporting each other within the families and reaching beyond their immediate family members and helping their relatives succeed in various frontiers of life. Australian businesses are proud to be run by families rather than corporations. Australian communities have always supported Australian owned family businesses.

    I was very excited to work in such a business called “Malwai Pty. Ltd.” Owned by my relatives. It was a perfect opportunity for me to establish myself in Australia as a manager and beyond. It was a great experience to work along with your family and progress through ups and downs with a lot of emotional and professional support. Everyone was willing to help each other above and beyond any limits which prevail in a corporate environment. I believed that Australia has this unique culture where everyone promotes a business run by a family.

    But, I was shocked to find out that immigration department has rejected my nomination application on the basis of me being a relative to one of the directors of the company by simply writing that “We believe that you’re helping a family member to migrate to Australia”.

    If, helping an eligible family member to migrate to Australia is against the migration law, then it should be mentioned on your website or other means of information. Such applications should be rejected at the time of filing, so that applicants don’t waste their time and look for other viable options. As I am a victim of this absurd reasoning, I always feel that if I was aware of this anti-family policy of immigration, I would have definitely worked somewhere else and get my and my family’s Visa approved.

    I was 36 when I came to Australia, now I am almost 45. I have lost everything, I have no future, no career and I have lived away from my daughter and my wife in the hope of a good future in Australia. And all of this has seemingly come to an end now.

    I am sorry if I have been unprofessional.

12. The Tribunal has carefully considered the applicant’s response to the Tribunal’s invitation in the review.  Notably, the relationship between the applicant and a director of the nominator was one of several factors why the Tribunal considered the nominated position was not genuine.  Other factors included:

    a.        the previous nominations made with respect to the nominee;
    b.        the absence of a Customer Service Manager position within the applicant business

    before the nomination;

    c.        the cessation of the nominee’s employment after the nomination refusal; and
    d.        the nominated position being occupied by another employee since the nomination
               refusal.

13. The applicant’s submissions make no contention in relation to whether an approved nomination exists in relation to the applicant. 

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

    Secondary applicants

15. As the primary applicant does not meet the criteria for a Subclass 457 visa, the second, third-named applicants do not meet the criteria for the grant of a Subclass 457 visa as they are not members of a family unit of a person that holds a Subclass 457 visa on the basis of satisfying the primary criteria.

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.

    Glenn O'Brien
    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.