Kawalpreet Kaur (Migration)

[2019] AATA 2034

Kawalpreet Kaur (Migration) [2019] AATA 2034 (30 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Kawalpreet Kaur
Mr Manpreet Singh
Miss Taabya Kaur Dhaliwal

CASE NUMBER:  1820073

DIBP REFERENCE(S):  BCC2017/1788265

MEMBER:George Hallwood

DATE:30 April 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 30 April 2019 at 11:52am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Standard Business Sponsorship– nomination approved – subject of an approved nomination – genuine position – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.72, 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 visa applicants applied for the visa on 19 May 2017.

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 primary visa applicant a visa because they found a nomination of an occupation in relation to the applicant had not been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i). The delegate refused to grant the secondary visa applicants visas because they weren’t members of a family unit of a person who already holds a subclass 457 visa and didn’t therefore meet cl.457.321.

5. The applicants appeared before the Tribunal on 15 April 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jaspal Randhawa, nominator and owner of the Whyalla Curry House as well as his wife, Ms Sukhraj Kaur. This was a combined hearing with the hearing for AAT file ref 1810759.

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

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

9. 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.

10. The nominator is approved as a Standard Business Sponsor. On 19 May 2017 the nominator applied for approval of a nomination under s.140GB which the delegate refused to approve on 28 March 2018. The approval as a Standard Business Sponsorship is effective until 26 March 2023. Also on 19 May 2017 the applicants applied for a Subclass 457 visa which is the subject of this application and which was not granted as the delegate found the nomination of an occupation in relation to the primary applicant had not been approved under s.140GB of the Act as required by cl.457.223(4)(a)(i). The delegate refused to grant the secondary visa applicants visas because they weren’t members of a family unit of a person who already holds a subclass 457 visa and didn’t therefore meet cl.457.321.

11. On 30 April 2019 the Tribunal set aside the department’s decision not to approve the nomination and substituted a decision that the nomination be approved. Based on the evidence provided in that application – AAT file ref 1810759 the Tribunal is satisfied the position associated with the nominated occupation is genuine. The sponsor satisfied regulation 2.72(10)(f) of the Regulations as well as the other prescribed criteria in regulation 2.72.

12. In these circumstances, the Tribunal finds that a nomination of an occupation in relation to the primary applicant has now been approved under s.140GB of the Act, and the approval of the nomination has not ceased. Further, the Tribunal finds that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved. For these reasons the requirements of cl.457.223(4)(a) are met.

13. The Tribunal considers the secondary applicants should be reconsidered given its findings about the primary applicant.

    CONCLUDING PARAGRAPHS

14. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

15. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations.

    George Hallwood
    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.