Jotic (Migration)

[2021] AATA 4164

Jotic (Migration) [2021] AATA 4164 (11 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Branko Jotic
Mrs Jelena Jovanovic
Mr Djordje George Jotic

CASE NUMBER:  1829861

HOME AFFAIRS REFERENCE(S):          BCC2017/2585712

MEMBER:Cathrine Burnett-Wake

DATE:11 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 October 2021 at 12:22pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – position of Corporate Services Manager – no approved nomination – decision under review affirmed      

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 20 July 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 (Cth) (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. In the present case, the applicant is seeking the visa to work in the nominated position of Corporate Services Manager with DJB Clean Pty Ltd.

5. The delegate refused to grant the visas on 24 September 2018 on the basis that cl 457.223(4)(a) was not met because there was no approved nomination.

6. The applicants appeared before the Tribunal on 20 September 2021 to give evidence and present arguments.

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. Following the hearing, on 23 September 2021, the Tribunal, wrote to the applicant pursuant to s.359A, of the Act and provided particulars of information that it considered at the time would be the reason, or part of the reason, for affirming the delegate's decision, and it invited the applicant to comment on or respond to the information. The applicant was advised that the timeframe to comment (or seek an extension to comment) was by 7 October 2021.

11. The particulars of the information were that the application for approval of the nominated position made by DJB Clean Pty Ltd was refused by a delegate of the Minister for Immigration and although merits review was sought for the nomination decision, the Tribunal recently affirmed the Department’s decision. Meaning that the nominator’s application for the nominated position has not been approved.

12. The letter explained to the applicant that this information is relevant to the review because it is a requirement for the grant of the visa that the position specified in the visa application is the subject of an approved nomination.

13. At the time of writing, the applicants had not responded to the Tribunal’s letter of 23 September 2021.

14. The evidence before the Tribunal is that there is no approved nomination of an occupation relating to the applicant.

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

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

    DECISION

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

    Cathrine Burnett-Wake
    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.