Hoang (Migration)

[2019] AATA 6390

Hoang (Migration) [2019] AATA 6390 (2 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Mai Ngoc Thi Hoang

CASE NUMBER:  1803736

DIBP REFERENCE(S):  BCC2016/3487530

MEMBER:Danielle Galvin

DATE:2 December 2019

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 02 December 2019 at 9:26am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Hair or Beauty Salon Manager – subject of an approved nomination – nomination application refused – 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 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 20 October 2016 on the basis that she had been nominated for the position of Hair or Beauty Salon Manager by her sponsor and nominator, DN Diversity Pty Ltd.

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. On 22 September 2017 the Department refused the nomination application of DN Diversity Pty Ltd. The nominator/sponsor lodged a new application on 18/10/17 and on 8/1/18 the Department again refused the nomination application. The delegate, therefore, found that the visa applicant did not satisfy cl.457.223(4)(a) nor did the visa applicant satisfy the secondary criteria under 457.321(member of the family unit). The Tribunal affirmed the Department decisions to refuse the nomination on 5 July 2018 and 25 June 2019 respectively.

5. At the time of the delegate’s decision in relation to the visa application, being 7 February 2018, there was no approved nomination in place and accordingly the delegate refused the visa application on the basis that the requirements of cl.457.223(4) were not met.

6. On 31 July 2018 the Tribunal wrote to the applicant and invited her to comment on or respond to information that there was no approved nomination in place.

7. In response a multitude of documents was sent to the Tribunal, none of which provided evidence of an approved nomination being in place. These documents included order forms, text print outs, bank statements, PAYG statements, invoices and reference letters.

8. On 1 August 2019 the applicant was again invited by the Tribunal in writing to comment on or respond to information about the refusal of the review in relation to the second nomination application.

9. Within the prescribed period the agent for the applicant submitted a further multitude of documentation to the Tribunal which did not inform the Tribunal as to the existance of an approved nomination. These documents included medical records of the sponsor’s director’s family, flight details, text print outs, further copies of the visa applicant’s certificates and declarations of customers.

10. The applicant appeared before the Tribunal on 22 October 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Thi Thanh Thuy Nguyen, the director of the sponsor, Ms Jane Falzon and Ms Fiona Johnson, who provided character references for the applicant in their capacity as customers. There is no doubt that the visa applicant is much loved by her clients and is an integral part of the business. However, the Tribunal has twice found, on the evidence presented, that the nominated position was not what it purported to be and refused the nomination.The evidence submitted at the hearing provided no further information as to the existence of an approved nomination being in place.

11. The applicant was represented in relation to the review by her registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(a), the requisite criteria to succeed in their application for a Temporary Business Entry (Class UC), Temporary Work (Skilled) (subclass 457 ) visa.

    Requirement for an approved nomination

13. 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.

14. The agent for the visa applicant sent undated written submissions to the Tribunal following the hearing noting that  “While understanding that an approved nomination is a compulsory requirement under clause 457.223(4)(a), we submit such document in support of the criterion in relation to 457.223(4)(d)……we earnestly request the Tribunal to assess whether or not the genuine position criterion within the visa application can be met based on the new evidence and further submission provided, let alone the approved nomination”.

15. With respect to the agent’s submission the Tribunal finds that it is misconceived. The Tribunal does not have jurisdiction to avoid a specific requirement that is necessary to satisfy the criterion for the granting of the visa. The submission appears to seek a review of the Tribunal decisions to refuse the nomination. The Tribunal has no jurisdiction to undertake such a review. Further, investigating the tasks to be performed by the visa applicant is a pointless inquiry if there is no approved nomination in place.

16. The Department refused both applications for the nominator to be approved in relation to the nominated position. Both refusals of the Department were affirmed by the Tribunal on 5 July 2018 and 25 June 2019 respectively on the basis that DN Diversity Pty Ltd did not satisfy r.2.72(10)(f) of the Regulations as the role was found, on both occasions, not to be genuine. The Tribunal is not in receipt of any evidence that an approved nomination is in place.

17. The Tribunal finds that the requirements of cl.457.223(4)(a) have not been met. Consequently the Department’s decision under review must be affirmed as the requirements of the standard business sponsor stream have not been met No claims have been made in respect of 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.

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

19. 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

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

    Danielle Galvin
    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.