Kaur (Migration) - [2021] AATA 660

Kaur (Migration) [2021] AATA 660 (10 March 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Ramandeep Kaur
Mr Baljinder Singh
Miss Sukhman Kaur Kaur
Mr Japjot Singh
CASE NUMBER:  1812413
HOME AFFAIRS REFERENCE(S):          BCC2017/1310162
MEMBER:Antonio Dronjic
DATE:10 March 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 10 March 2021 at 12:19pm
CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application affirmed – no substantive response to tribunal’s invitation to comment – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A, 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321
CASES
Giri v MIAC [2011] FMCA 282
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Kalakuntla v MHA [2019] FCCA 3663
Kaur v Minister for Immigration and Border Protection [2014] FCA 915
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Border Protection v Singh [2014] FCAFC 1
Minister for Immigration and Citizenship v Li [2013] HCA 18
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The visa applicants applied for the visa on 7 April 2017.
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.
The delegate refused to grant the visas on 12 April 2018 on the basis that cl 457.223(4)(a) was not met by the primary applicant. On 15 February 2018, the Department refused the nomination application lodged by H Sohi & M Kaur, nominating the first named applicant for a position of a gardener within the business. The secondary applicants were refused as they were not able to meet cl. 457.321.
The applicants applied to the Tribunal on 1 May 2018 and provided a copy of the primary decision record with the applications. The applicants were represented by a migration agent.
On 17 February…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Kaur (Migration)

Details

AGLC: Kaur (Migration) [2021] AATA 660
Case: [2021] AATA 660
Decision Date: 10 March 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal, constituted by Member Antonio Dronjic, considered an application for a Temporary Business Entry (Class UC) visa, Subclass 457 (Temporary Work (Skilled)), standard business sponsor stream. The applicants sought review of a decision to refuse their visa applications. The primary applicant was the subject of an approved position nomination, and the other applicants were members of their family unit.

The central legal issue before the Tribunal was whether the primary applicant met the requirements of clause 457.223(4)(a) of the Migration Regulations 1994, which mandates an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. This requirement was a prerequisite for the grant of the visa to the primary applicant, and consequently, for the secondary applicants to satisfy the criteria for being members of the family unit of a Subclass 457 visa holder.

The Tribunal found that the primary applicant was not, at the time of the Tribunal's decision, the subject of an approved business nomination that had not ceased. This failure to satisfy the primary criteria under clause 457.223(4)(a) meant that the secondary applicants could not satisfy the criteria under clause 457.321, which requires them to be members of the family unit of a person who has satisfied the primary criteria and holds a Subclass 457 visa. Consequently, the Tribunal concluded that the requirements for the standard business sponsor stream had not been met.

The Tribunal affirmed the decision not to grant the applicants Temporary Business Entry (Class UC) visas. No claims were made or evidence presented regarding other streams within clause 457.223, nor was there evidence that the applicants could satisfy the specific criteria for those alternative streams.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCERequirement for an approved nomination 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. Based on the evidence before it, the Tribunal finds that the first named applicant is not, at the time of Tribunal decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named applicant that has not ceased. The Tribunal finds that the first named applicant does not satisfy cl.457.223(4)(a). As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second, third and fourth named applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. 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 The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.Antonio DronjicMemberATTACHMENT - 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.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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