Joshi (Migration)

[2019] AATA 5136

Joshi (Migration) [2019] AATA 5136 (12 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gaurav Joshi

CASE NUMBER:  1710076

DIBP REFERENCE(S):  BCC2015/2481264

MEMBER:Peter Emmerton

DATE:12 November 2019

PLACE OF DECISION:  Adelaide

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

Statement made on 12 November 2019 at 4:04pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nominator ceased operation – nomination withdrawn – applicability of saving provisions – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (Cth), Sch 1, cl 6704
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 26 August 2015. The Department refused the visa on 24 April 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. On 9 March 2017 a decision was taken by the Department to refuse the nomination application lodged on 23 March 2016 by the applicant’s prospective employer, Foodshalla Pty Ltd.

5. The applicant appeared before the Tribunal via video on 12 November 2019 to give evidence and present arguments.

6. The applicant was not represented in relation to the review by a registered migration agent.

7. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) 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.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. In determining the applicant’s claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

10. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

11. A nomination of the occupation of Retail Manager (General), ANZSCO 142111 in relation to the applicant was refused on 9 March 2017. The nominator ceased operation and subsequently had its’ ABN cancelled on 6 June 2017. The nomination was subsequently withdrawn.

12. Then, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) 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.

13. The applicant was sent a letter, (359(A)) regarding this information and was informed that, as it appeared that the applicant was not the subject of an approved nomination and that a new application for approval of a nomination in respect of a Subclass 457 visa applicant cannot be made, the decision on the application for review would have to be affirmed.

14. The applicant requested an extension of time beyond the original 15 October deadline to respond to the letter which was granted by the Tribunal and the applicant was required to respond by 28 October 2019, in-line with his request.

15. Mr Joshi responded within the required extended time period.

16. The Tribunal received a very brief response from the applicant stating that he was unable to contact his previous employer. He also commented that he had been working for another employer.

17. The Tribunal notes the following: “Subclause 6704(15) ensures that a nomination linked to a Subclass 457 visa application will not cease during AAT review of a decision to refuse the visa. This is a beneficial change to extend the validity of a nomination, which would otherwise cease 12 months after approval (paragraph 2.75(2)(b) of the Regulations), to avoid situations where the applicant is successful at the AAT but the related nomination has ceased to be in effect, noting that it is not possible to make another Subclass 457 nomination as of 18 March 2018.”

18. The Tribunal accepts that the saving provisions would have the effect of maintaining a nomination beyond 12 months, but only if the nomination had not already ceased prior to the enactment of the Amending Regulations. In the circumstances of this case however, the nomination was refused on 9 March 2017. This is prior to the commencement date of the Amending Regulations. The Tribunal acknowledges that the nomination ceased prior to the applicant seeking review of their visa refusal on 10 May 2017, and is of the view that the applicants should have been aware that once their nomination ceased by operation of r.2.72(2)(b), they would have needed a new nomination in order to meet an essential requirement for the Subclass 457 visa. This is regardless of the changes to the Subclass 457 visa program.

19. Mr Joshi provided several pay slips and an employment contract with his current employer Maha Vin Pty Ltd, ABN 70 629 368 109, located at 31763 Albany Hwy, Mt Barker, WA 6324. He stated that his current employer’s nomination for a GK 482 Short Term Business Sponsorship had been refused. This was later verified by the Tribunal upon inspection of Departmental records which indicate this took place on 25 October 2019.

20. The Tribunal asked the visa applicant if he had evidence of a valid nomination associated with the 457 visa under review. He replied in the negative. There is nothing before the Tribunal to indicate that a new nomination was lodged.

21. At the time of this decision, there is not an approved nomination of an occupation under s.140GB relating to the applicant. It is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018. In these circumstances, the requirements of cl.457.223(4)(a) are not met.

22. 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

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

    Peter Emmerton
    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.