Irmano (Migration)

[2019] AATA 5144

Irmano (Migration) [2019] AATA 5144 (18 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jonathan Irmano
Mrs Yolanda Tabi Irmano

CASE NUMBER:  1720641

DIBP REFERENCE(S):  BCC2016/3881244

MEMBER:Nicola Findson

DATE:18 November 2019

PLACE OF DECISION:  Perth

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

Statement made on 18 November 2019 at 1:24pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – amendment to regulations – nominated occupation removed from occupations list – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1959 (Cth), ss 65, 140GB, 359A

Migration Regulations 1994 (Cth), r 2.72(5)(b), Schedule 2, cls 457.223(4)(a), 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 August 2017 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 visas on 18 November 2016.  They applied for the visas on the basis of the first-named applicant’s proposed employment with Insta-Gator Pty Ltd, in the position of Ship’s Engineer (ANZSCO 231212).

3. At the time the 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 the basis that the first-named applicant (the applicant) did not meet cl.457.223(4)(aa), and therefore cl.457.223(4) as a whole, because the nominated occupation of Ship’s Engineer was not specified in an instrument in writing for paragraph 2.72(10)(a) or (aa) that is in effect.  While the delegate noted that at the time the applicant made his application he was the subject of an approved nomination, his nominated occupation had been removed from the occupations list on 19 August 2017, and therefore it was no longer eligible for the Subclass 457 programme.  Further, the delegate was not satisfied the second-named applicant satisfied cl.457.321, requiring her to be a member of the family unit of a person who, having met all of the primary criteria, holds a Subclass 457 visa.

5. The applicants applied for review on 5 September 2017.  They provided the Tribunal with a copy of the delegate’s decision, for the purpose of the review.

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 for the Tribunal in this case is whether the applicant meets the requirements of cl.457.223(4)(a).  This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor and the approval of the nomination has not ceased.

8. A nomination of the occupation, in relation to the applicant was approved on 9 August 2016.  However, that approval ceased on 9 August 2017, by virtue of the operation of r.2.72(5)(b).

9. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants.  The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

10. On 14 October 2019, the Tribunal wrote to the applicants, pursuant to s.359A of the Act, and invited them to provide comments in writing on the following information that it considered would be part of the reason for affirming the decision under review:

    ·“It is a requirement for the grant of a Subclass 457 (Temporary Work (Skilled)) visa that you are the subject of a nomination by a standard business sponsor approved under s.140GB of the Act.

    ·A review of your file and Departmental records suggests that you are not the subject of an approved nomination by a standard business sponsor because the nomination previously approved for Insta-Gator Pty Ltd in respect of you expired on 9 August 2017.

    ·The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced 18 March 2018 and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.”

11. By way of response, on 18 October 2019, the applicants indicated (by way of summary) that it was their understanding that when the approved nomination ceased on 9 August 2017, Insta-Gator Pty Ltd had lodged a new nomination application and “made it come up to date”.  The applicants also urged the Tribunal to compassionately consider their case.  They indicated they had been in Australia for almost 7 years; were hard working; and that the applicant had 28 years of experience in the fishing industry and wanted to make a valuable contribution both to his employer and Australia. 

12. On 22 October 2019, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone.  The Tribunal invited the applicants to a hearing on 7 November 2019, to give evidence and present arguments.

13. At the hearing, the Tribunal explained the requirements of cl.457.223(4)(a).  The applicant indicated he now understood that he was not the subject of an approved nomination.  The Tribunal explained that if it found he was not the subject of an approved nomination it would have to affirm the delegate’s decision.  The applicant indicated he understood. 

14. The applicant indicated that he had been assured by his nominating employer, every time he queried them, that his visa situation was being “sorted out” and that he should not worry.  He said he had been led to believe that there would be a good outcome in relation to his visa application. He reiterated that he had come to Australia from Vietnam, as the holder of a Subclass 457 visa almost 7 years ago.  He indicated that he and his wife were devastated at the prospect of having to return to their home country after all this time, especially in circumstances that were not their fault.  The Tribunal acknowledges this evidence and notes its sympathy for the applicants.

15. However, the evidence before the Tribunal is that there is not an approved nomination of an occupation in respect of the applicant by a standard business sponsor that has not ceased.  For these reasons the requirements of cl.457.223(4)(a) are not met by the applicant.

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 applicant would be able to satisfy the specific criteria for those streams.

17. The secondary applicant has not made any claims against the primary criteria for the grant of a Subclass 457 visa and there is no evidence that she satisfies the primary criteria.

18. The secondary applicant must be a member of the family unit of a person who satisfies the criteria for the grant of a subclass 457 visa.  The Tribunal has made findings that the first-named applicant does not meet cl.457.223.  Given this, there is no evidence before the Tribunal that the secondary applicant is a member of the family unit of a person who, having met all of the primary criteria, holds a Subclass 457 visa.  On this basis, the secondary applicant cannot meet cl.457.321.  She, therefore, does not meet the criteria for the grant of the visa.

    DECISION

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

    Nicola Findson
    Member