Iqbal (Migration)

[2020] AATA 510

Iqbal (Migration) [2020] AATA 510 (19 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Zeeshan Iqbal

CASE NUMBER:  1900364

DIBP REFERENCE(S):  BCC2017/2767709

MEMBER:Michael Ison

DATE:19 February 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 19 February 2020 at 6:54pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Accountant (General) – subject of an approved nomination – nomination 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 3 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 (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 3 January 2019 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of a current approved nomination by an approved business sponsor.

5. The applicant appeared before the Tribunal on 13 December 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Singh, the sole director of NS & Associates Pty Ltd, the sponsoring employer (the sponsor).

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

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 applicant was nominated by the sponsor in the occupation of Accountant (General) (ANZSCO 221111). The sponsor’s nomination application in respect of the applicant was refused by a delegate of the Minister on 5 December 2018 and the sponsor sought a review of that decision by the Tribunal. The Tribunal, as presently constituted, also conducted a hearing in respect of that review (Tribunal case no. 1837260) on 13 December 2019.

11. At the hearing the Tribunal explained to the applicant that as the nomination in relation to him had been refused by the Department, and as one of the primary requirements for the grant of the subclass 457 visa is that he be the subject of a current approved nomination, his application for review depended on the outcome his sponsor’s application for review of the nomination in relation to him.

12. On 4 February 2020 the Tribunal affirmed the delegate’s decision not to approve the nomination made by the sponsor in respect of the applicant.

13. On 5 February 2020 the Tribunal wrote to the applicant, care of the applicant’s representative, in accordance with the procedure set out in s.359A of the Act. The Tribunal’s letter stated in part:

    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 decision under review.

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

    The particulars of the information are:

    ·Your visa application was refused by a delegate of the Minister on 3 January 2019 because the nomination mentioned in cl.457.223(4) had not been approved and you provided no information under cl.457.223(2).

    ·The decision not to approve the nomination by NS & Associates Pty Ltd was made on 5 December 2018.

    ·NS & Associates Pty Ltd applied for review of this decision at the Tribunal on 19 December 2018.

    ·On 4 February 2020 the Tribunal refused to approve NS & Associates Pty Ltd’s nomination application for a Temporary Work (Skilled) (Subclass 457) visa.

    This information is relevant to your review because one of the criteria for the grant of a subclass 457 visa, namely clause 457.223(4)(a), requires that the nomination has been approved by the Minister and that nomination has not ceased.

    The consequence of the Tribunal relying on this information in making its decision is that the Tribunal may find that the position specified in your visa application is not the subject of an approved nomination which means your application would not meet the requirements of cl.457.223(4)(a). This would be the reason, or a part of the reason, for the Tribunal to affirm the decision of the delegate that is under review. This is because as the nominator’s application for the nominated position has not been approved, subject to your response, you do not satisfy a requirement for the grant of a subclass 457 visa and the Tribunal therefore must affirm the decision that is under review.[1]

    [1] Tribunal file, folios 33 to 35.

14. The Tribunal’s letter specified, in accordance with s.359B(2) of the Act and r.4.17, that the applicant had 14 days to provide comment on or to respond to the information or to seek an extension of time to comment on or to respond to the information, with effect that the response to the information was due by 19 February 2020.

15. On 19 February 2020 the Tribunal received a response from the representative for the applicant that stated:

    The applicant does not have any further comments for this application, please makes the decision based on the existing evidence and information. [2]

    [2] Tribunal file, folio 36.

16. As indicated above, the nomination in relation to the applicant has been refused and that decision was affirmed by the Tribunal on 4 February 2020. There is no evidence before the Tribunal that the applicant, at the time of this decision, is the subject of an approved nomination of an occupation by a standard business sponsor that has not ceased.

17. Given the above, the Tribunal finds that the applicant does not meet the requirements of cl.457.223(4)(a).

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

    Michael Ison
    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.