Kaur (Migration)

[2017] AATA 1880

Kaur (Migration) [2017] AATA 1880 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rajdeep Kaur
Mr Mandip Singh
Ms Keerat Kaur

CASE NUMBER:  1511588

DIBP REFERENCE(S):  BCC2015/183087

MEMBER:Alison Mercer

DATE:13 October 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 13 October 2017 at 5:56pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Subject of an approved nomination by an approved standard business sponsor – Sponsor's nomination application initially rejected by delegate – Sponsor's nomination application affirmed by Tribunal

LEGISLATION

Migration Act 1958, ss 65, 359A

Migration Regulation 1994, Schedule 2, cl 457.2, 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visa on 17 January 2015.

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. The delegate refused to grant the visas on 11 August 2015 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination by an approved standard business sponsor. The delegate found that the applicant’s employer, Gazzola Farms Pty Ltd, had had its nomination application refused by the Department on 4 August 2015. The delegate also refused the visa applications of the first and second named applicants (the husband and daughter of the applicant) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence that they met the primary visa criteria in their own right.

5. The Tribunal received a review application from the applicants on 24 August 2015. It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr Rick Gunn, as their representative and authorised recipient for correspondence.

6. On 5 May 2017, the Tribunal wrote to the applicants via their agent inviting them to a hearing on 24 May 2017.

7. On 8 May 2017, the applicants’ agent responded to advise that they would attend the hearing on 24 May 2017. He also enclosed a copy of an acknowledgement from the Department that a nomination application lodged with the Department by Gazzola Farms Pty Ltd on 20 February 2017. The agent advised that this nomination related to the applicant’s husband, Mr Mandip Singh (the second named applicant) and that it was for the position of Vegetable Farmer. The agent noted that the above nomination was still being processed by the Department, and the timeframe for this was outside the applicants’ control; however, it was unlikely that it would be finalised by the time of the Tribunal hearing. The agent foreshadowed that he and the applicants intended to request the Tribunal to defer its decision until such a time as the nomination had been determined, given that the only issue in the case appeared the lack of an approved nomination, and under cl.457.2, any of the applicants included in the visa application could meet the primary criteria.

8. On 24 May 2017, the Tribunal conducted 2 hearings, one for Gazzola Farms Pty Ltd in relation to the Department’s refusal of its nomination of the applicant (at which the applicant gave evidence as a witness) and one in relation to the applicants’ subclass 457 visa applications, which the applicants attended and the applicant gave evidence.  The applicants’ agent attended both hearings.

9. At the applicants’ hearing in relation to the subclass 457 visa refusals, the Tribunal advised the applicants that the outcome of their review application was largely dependent on the outcome of Gazzola Farms Pty Ltd’s nomination refusal review application. If that review application was successful, then the Tribunal would remit the subclass 457 visa applications to the Department for reconsideration in accordance with a direction that the applicant satisfied cl.457.223(4)(a). If the Tribunal affirmed the decision to refuse the nomination of the applicant, then it would write to the applicants pursuant to s.359A of the Act to invite them to comment on this information before making its decision on their review application.

10. The Tribunal also undertook to defer its decision until 10 July 2017, to enable the applicants and their employer to assess whether there were any favourable changes to the nominated occupations of the applicant (Facilities Manager) and her husband, the second named applicant (Vegetable Farmer), given the Department had foreshadowed publishing a new instrument listing approved occupations for the purposes of the subclass 457 visa program on 1 July 2017 (and any applicable caveats to any of the included occupations), so that they could make any additional submissions.

11. The Tribunal did not receive any additional submissions by 10 July 2017. 

12. On 22 September 2017, the Tribunal made a decision to affirm the Department’s decision to refuse Gazzola Farms Pty Ltd’s nomination of the applicant for the position of Facilities Manager [AAT MRD 1511582].

13. On 25 September 2017, the Tribunal wrote to the applicants via their agent pursuant to s.359A of the Act to invite them to comment on information which the Tribunal considered would, subject to their response or comments, be the reason, or part of the reason, for affirming the decision under review. The Tribunal noted that the particulars of the information were that the Tribunal had now affirmed the Department’s decision to refuse Gazzola Farms Pty Ltd’s nomination of the applicant for the position of Facilities Manager, and that this was relevant to the applicant as it indicated – subject to the applicants’ comments or response – that she was not the subject of an approved nomination by an approved standard business sponsor, as required by cl.457.223(4)(a). The Tribunal noted that if it found this, then this would be the reason (or part of the reason) to affirm the decision under review in relation to her. The Tribunal further noted that it was relevant to the second and third named applicants as it indicated that the applicant did not meet the primary criteria and therefore they appeared not to meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria and there was no evidence to indicate that they met the primary visa criteria in their own right.

14. The applicants were invited to provide a response or comments by 9 October 2017, and were advised that they could ask for an extension of time to do so, provided they had good reasons to do so and made such a request by 9 October 2017.  The Tribunal advised that in the event that they did not respond by the due date, it might proceed to make its decision without taking any further steps to obtain their views on the information.

15. On 9 October 2017, the Tribunal received a response from the applicants’ agent stating that his instructions were that no additional information would be provided by the applicants in response to the invitation to comment.

16. 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

17. 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.

18. Based on the information before it, the Tribunal finds that the applicant is not the subject of an approved nomination by a standard business sponsor, as the nomination of her by Gazzola Farms Pty Ltd was refused by the Department on 4 August 2015 and that decision was affirmed by the Tribunal on 22 September 2017. There is no evidence that the applicant is the subject of an approved nomination by any other approved standard business sponsor.

19. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) are not met by the applicant.

20. The Tribunal further finds that the second and third named applicants do not meet the secondary visa criteria as they are not members of the family unit of a person who satisfies the primary visa criteria or holds a subclass 457 visa. Nor is there is any evidence that the second or third named applicant meets the primary visa criteria in his own right. The Tribunal notes that the agent referred to the fact that the second named applicant had also been nominated by Gazzola Farms Pty Ltd as a Vegetable Farmer in February 2017. However, there is no evidence before the Tribunal to indicate that this has been approved, or whether it is still under consideration by the Department. If the latter, the Tribunal does not consider it reasonable to defer its decision for a further period given it has not been provided with any indication of when a decision might be forthcoming on this nomination.

21. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Alison Mercer
    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.