Kaur (Migration)

[2018] AATA 5733

Kaur (Migration) [2018] AATA 5733 (9 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr Ashok Kumar

CASE NUMBER:  1707439

DIBP REFERENCE(S):  BCC2016/1942084

MEMBER:Sheridan Lee

DATE:9 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 November 2018 at 11:22am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination application refused – 457 visa program repealed – approved nomination in relation to Subclass 482 visa – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223, 457.321

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 primary visa applicant (the applicant) and her husband applied for the visas on 3 June 2016. 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). 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.

3. The delegate refused to grant the visas on 24 March 2017 on the basis that cl.457.223(4)(a) was not met because the applicant’s sponsoring employer, Mattina Orchards Pty Ltd, did not have an approved nomination in place in respect of the applicant.

4. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination of the relevant kind

6. 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.

7. On 8 March 2017, Mattina Orchards, as the trustee for Demaio NL & JK Family Trust, applied to the Tribunal for review of a departmental decision not to approve a nomination in respect of the applicant, for the occupation of Arborist.

8. On 27 September 2018, the Tribunal affirmed the decision not to approve the nomination. The information contained on departmental records at the time indicated that the applicant was not the subject of an approved nomination by a standard business sponsor.

9. The Tribunal invited the applicant to comment on or respond to the above information in accordance with s.359A of the Act. On 15 October 2018, the applicant supplied the Tribunal with a notification of approval as a standard business sponsor and a nomination approval notice for a subclass 482 visa, both issued to Boumbis Orchards Pty Ltd by the Department of Home Affairs on 15 August 2018.

10. Due to changes to the legislative scheme on 18 March 2018, nomination applications made on or after that date are not made in relation to applicants or proposed applicants for subclass 457 visas.[1] The approved nomination provided by the applicant was made in relation to a subclass 482 visa, it was not made in relation to an applicant or proposed applicant for a subclass 457 visa.

    [1] Rather, they are made in relation to applicants/proposed applicants for Subclass 482 visas or to holders of Subclass 482 or Subclass 457 visas. See r.2.72(1) as repealed and substituted by F2018L00262.

11. On 16 October 2018, the Tribunal wrote to the applicant to advise that after considering the material, it was unable to make a favourable decision on the information before it. The applicant was invited to attend a hearing on 9 November 2018 to give evidence and present arguments.

12. On 5 November 2018, the applicant’s representative advised the Tribunal that she had recently been granted a subclass 482 visa and would not be attending the hearing. A copy of the notification that a subclass 482 visa has been granted to the applicant was appended. The correspondence requested that the Tribunal make a decision on the available material.

13. As outlined above, the nomination by Boumbis Orchards was made in relation to a subclass 482 visa, not an applicant or proposed applicant for a subclass 457 visa. As such, the applicant is not the subject of an approved nomination by a standard business sponsor of the relevant kind.

14. For these reasons the requirements of cl.457.223(4)(a) are not met. The Tribunal finds that the requirements for the standard business sponsor stream of the subclass 457 visa 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.

15. As the Tribunal found that the applicant does not satisfy the primary criteria, it must find that the second named applicant does not satisfy the secondary criteria for a grant of a visa, as required by cl.457.321.

    DECISION

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

    Sheridan Lee
    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.