Kaur (Migration)

[2017] AATA 316

Kaur (Migration) [2017] AATA 316 (1 March 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sandeep Kaur
Mr Rajvir Singh

CASE NUMBER:  1601174

DIBP REFERENCE(S):  BCC2012/1391691

MEMBER:Bruce Henry

DATE:1 March 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 01 March 2017 at 12:55pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Nomination – Federal Circuit Court remittal – Customer Service Manager – Not subject of approved nomination

LEGISLATION

Migration Act 1958, s 65, 140GB

Migration Regulations 1994, Schedule 2, cl 457.223(4)(a)

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 visa applicants applied for the visa on 28 December 2012.

3. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. 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 4 September 2014 on the basis that cl.457.223(4)(a) was not met because the first named applicant, Ms Kaur, was not the subject of an approved nomination.

5. A differently constituted Tribunal had affirmed the decision of the Department on 28 April 2015. The matter is before the Tribunal because that decision was remitted by consent orders made by Riethmuller J in the Federal Circuit Court at Brisbane on 21 January 2016.

6. In remitting the matter the Court noted that the Tribunal had committed a jurisdictional error in finding that it did not have jurisdiction to consider the applicants' application for review. That concession is made on the basis that, at the time the applicants made an application to the Tribunal to review the decision to refuse to grant a Subclass 457 visa, an application for review of a decision not to approve a nomination under subsection 140GB(1) of the Act in respect of Ms Kaur was pending before the Tribunal.

7. Ms Kaur appeared before the Tribunal on 28 February 2017 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether Ms Kaur meets the requirements of cl.457.223(4)(a), which relevantly requires that a nomination of an occupation in relation to the applicant had been approved under s.140GB of the Act, the person who made the nomination was a standard business sponsor at the time the nomination was approved and that nomination has not ceased to have effect.

11. On 24 July 2014 the Department refused the nomination application lodged by the applicant’s prospective employer, Host Wealth Pty Ltd. That decision was affirmed by the Tribunal on 28 April 2015. Host Wealth Pty Ltd had sought approval to nominate Ms Kaur as a Customer Service Manager at its 7-Eleven store.

12. The subsequent history of this matter is set out by the representative in an email to the Tribunal dated 27 February 2017:

    I note that the Review Applicant’s subclass 457 visa application which is the subject of this review was refused on 4 September 2014 as she was unable to meet Regulation 457.223(4)(a) of the Migration Regulations 1994.

    A review application was lodged to review this decision however on 28 April 2015, it was decided that the Tribunal did not have jurisdiction over this matter. The Review Applicant then appealed this decision to the Federal Circuit Court of Australia. The Minister conceded that the Tribunal had committed jurisdictional error and on 21 January 2016 the Court made an order for a writ of certiorari and mandamus.

    The applicant had lodged another subclass 457 nomination application in the meantime, however this was unfortunately refused as it came to light during that application that the business would not have been able to financially support the nominated position.

13. The representative also stated:

    The applicant is currently in contact with two separate prospective subclass 457 nominators and is awaiting their decision as to whether they wish to proceed. The applicant has had a drawn out immigration history and had endured a long period of visa uncertainty. The Review Applicant requests that this matter be held open until a new nomination can be lodged.

14. At the hearing the applicant stated that she has had a telephone conversation with a prospective employer who operates a restaurant in Port Hedland, Western Australia, about a Customer Service Manager’s position at the restaurant. She did not name this employer, and told the Tribunal that she did not know whether the business was approved as a standard business sponsor. She asked the Tribunal to defer consideration of her application until she had an opportunity to meet with the employer and ascertain whether he is eligible and willing to nominate her for a position in his restaurant.

15. The representative advised the Tribunal that the applicant had been nominated by an approved business sponsor in 2016, however the nomination had been refused by the Department. Ms Kaur said that she had been attempting to find another sponsor since that time, but had not yet been able to do so. She said that she hoped to be able to meet the employer in Port Hedland in the near future. The representative advised that the potential employer is a franchisee and needed to check whether he was able to sponsor under the terms of his franchise agreement before the matter could be advanced any further.

16. The Tribunal advised the applicant that it was not prepared to defer consideration of the matter on this basis, pointing out that the matter had been remitted back from the Federal Circuit Court more than a year previously, and that the Tribunal had written to her in September 2016 asking for advice as to whether she was the subject of an approved nomination. The Tribunal pointed out that her own evidence was that she was unable to state the name of the employer with whom she had a telephone discussion, or whether the business was an approved sponsor.

17. The Tribunal put to the representative that Ms Kaur would be able to apply for a subclass 457 visa should she depart Australia, as she would not be subject to an exclusion period if she departed after having had a visa refused. The representative agreed that this was the case legally, but said that in his experience it is more difficult for a person to find a sponsor if they hold a bridging visa or if they are outside Australia.

    Requirement for an approved nomination

18. 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.

19. The Tribunal notes that Ms Kaur is not the subject of an application for approval of a nomination, nor was she able to provide evidence that such an application is pending. Accordingly, the Tribunal is not prepared to delay this matter as requested by the representative.

20. Further, the Tribunal is satisfied on the basis of Ms Kaur’s evidence that she is not the subject of an approved nomination. Accordingly, the requirements of cl.457.223(4)(a) are not met.

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 Ms Kaur would be able to satisfy the specific criteria for those streams.

22. As Mrs Kaur does not satisfy the primary criteria for the grant of a subclass 457 visa, the second named applicant does not satisfy 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.

    DECISION

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

    Bruce Henry
    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.