Kaur (Migration)

[2018] AATA 5711

Kaur (Migration) [2018] AATA 5711 (5 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Mandeep Kaur Kaur
Mr Vipan Saini
Master Jasdeep Singh Saini
Miss Avireet Kaur Saini

CASE NUMBER:  1803762

DIBP REFERENCE(S):  BCC2017/1005216

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:          5 December 2018 at 9:57 am (VIC time)

DATE OF WRITTEN RECORD:                4 January 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 04 January 2019 at 9:43am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – fleet manager – not the subject of an approved or pending nomination –nominated occupation removed from the eligible list of occupations – standard business sponsor stream – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, r 2.72, Schedule 2, cls 457.223, 457.321

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 1 February 2018 to refuse to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (the Act).

2. At the hearing on 5 December 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. On 14 March 2017, Mrs Kaur and her family applied to the Department of Home Affairs for Temporary Business Entry (Class UC) visas. At the time the visa application was lodged, class UC contained subclass 457. The criteria for a subclass 457 visa were set out in part 457 of schedule 2 to the Migration Regulations.

4. In the present case, specific claims has been made against clause 457.223(4), which applies to sponsorship for employment in an occupation by a standard business sponsor. No claims had been made in respect of the alternative streams. Clause 457.223(4A) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

5. The applicant has acknowledged that she is not the subject of an approved or pending nomination for a subclass 457 visa, however she was previously unaware that that was the case, having not been advised by her employer or her employer's representative. Unfortunately, as of 18 March 2018 it is no longer possible to lodge a new nomination application in the 457 visa scheme.  As such, the applicant cannot meet an essential criterion for the grant of the visa.

6. As the applicant is not presently the subject of an approved nomination by a standard business sponsor, I find that the applicant does not meet the requirement in clause 457.223(4A)(i).

7. In addition, the Tribunal wrote to the applicant to advise that her nominated occupation of fleet manager was removed from the list of eligible skilled occupations for the subclass 457 program as of 18 April 2017.

8. It is a requirement in paragraph 457.223(4AA) that the nominated occupation be specified in an instrument in writing for the purposes of paragraph 2.72(10A) or (AA).  As the applicant's nominated occupation of fleet manager is no longer on the eligible skilled occupations list, she cannot meet this criterion.  As a result, the requirements of clause 457.223(4A) are not met, along with the criteria in 457.223(4AA).

9. The second, third, and fourth named applicants applied for the visas on the basis that they are members of the family unit of another person who holds a subclass 457 visa, having satisfied the primary criteria. As the primary applicant was found not to meet the prescribed criteria, the secondary applicants do not satisfy clause 457.321.

10. I affirm the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    DECISION

11. The Tribunal affirms the decisions under review.

    Sheridan Lee
    Member