Janthanat (Migration)

[2019] AATA 3307

Janthanat (Migration) [2019] AATA 3307 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thitima Janthanat
Mr Poowanai Janthanat

CASE NUMBER:  1834789

DIBP REFERENCE(S):  BCC2018/1152348

MEMBER:Karen McNamara

DATE:23 July 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)( e) of Schedule 2 to the Regulations.

Statement made on 23 July 2019 at 11:28am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – relevant skills – skills assessment provided upon review – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223(4)

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 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 11 March 2018.

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 visas on 16 November 2018 on the basis that Mrs Thitima Janthanat (the first named applicant) did not meet 457.223(4) ( e) of schedule 2 of the Migration Regulations 1994 (the Regulations) because she did not provide evidence, when requested to do so by the delegate, that she has the skills necessary to perform the occupation of Chef ANZSCO- 351311. The delegate had requested Mrs Thitima Janthanat provide a Skills Assessment from VETASSESS.

5. The Tribunal was able to make a positive decision on the papers and, for the following reasons has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4) ( e) of schedule 2 of the Migration Regulations 1994 (the Regulations)

7. On 6 May 2019, the Tribunal received from Mrs Thitima Janthanat, a Skills Assessment issued by VETASSESS dated 8 April 2019 which confirms that its assessment of Mrs Thitima Janthanat’s skills in her occupation of Chef  ANZSCO- 351311, has been successful having regard to her Certificate IV in Commercial Cookery.

8. The Skills Assessment notes that VETASESS has been contracted by the Commonwealth of Australia through TRA to conduct skills assessments on its behalf. The Skills Assessment is signed by the Acting Manager Skills Recognition International, VETASSESS. 

9. In light of the new evidence received, the Tribunal is satisfied that the criterion in cl.457.223 (4) (e) of Schedule 2 to the Regulations is met.

10. Mr Poowanai Janthanat  applied on the basis of being a member of the family unit of the first named applicant. The application by Mr Poowanai Janthanatwill be determined by reference to the outcome of Mrs Thitima Janthanat’s  application on remittal to the Department for consideration.

11. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

12. The Tribunal remits the application for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(e ) of Schedule 2 to the Regulations.

    Karen McNamara
    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.