KAYASTHA (Migration)

[2019] AATA 6270

KAYASTHA (Migration) [2019] AATA 6270 (15 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bijendra KAYASTHA
Mrs Sarju ONTA
Miss Swara KAYASTHA

CASE NUMBER:  1618333

DIBP REFERENCE(S):  BCC2016/1976577

MEMBER:Wan Shum

DATE:15 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 15 October 2019 at 3:53pm

CATCHWORDS

MIGRATION –Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship stream – approval of nomination of occupation ceased – legislative amendments to visa class – applicant ceased working for employer before amendments came into effect – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.72(5)(b), Schedule 2, cl 457.223(4)(a)
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018

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 applicants applied for the Subclass 457 visa on 7 June 2016.

3. 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. An approval for the occupation of Café or Restaurant Manager in relation to the first named applicant (the applicant) was sought by NP Catering Pty Ltd (the nominator). It was approved on 30 August 2016.

5. The delegate refused to grant the visas on 25 October 2016 on the basis that cl.457.224 was not met because the applicant did not meet Public Interest Criterion 4013.

6. The applicants sought review of that decision and were represented in relation to the review by a registered migration agent.

7. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

8. The applicants appeared before the Tribunal on 15 October 2019 to give evidence and present arguments. The representative was present.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. A nomination of the occupation of Café or Restaurant Manager in relation to the first named applicant (the applicant) was approved on 30 August 2016. However, that approval ceased on 30 August 2017 by virtue of the operation of r.2.72(5)(b).

11. Then, on 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

12. The applicants were invited to comment on the fact that the applicant was not the subject of an approved nomination. Reference was made to the 18 March 2018 changes and that it was no longer possible to make an application for approval of a nomination in respect of a Subclass 457 visa applicant which would be a reason for affirming the decision on review. The Tribunal received a response from the representative, which advised that the applicant had commenced working for the nominator on 1 July 2016 and finished working there on 31 December 2017. It was submitted that he had been on a 3 year exclusion period and the nominator did not lodge a further nomination as there was no prospect of granting the visa to the applicant. They were in the process of exploring different visa options at this stage.

13. The applicant stated that he had relied on advice from various immigration lawyers and/or agents and had not been given proper guidance as to his options. He maintained that he had not done anything wrong.

14. The Tribunal is cognisant that the legislative changes that happened during the review process have meant that the applicants in this case can no longer obtain Subclass 457 visas as was their intention. However, the applicant had stopped working for the employer prior to the changes to the 457 visa program coming into effect. As to his complaints about not having been given proper guidance, it is not appropriate for the Tribunal to consider or comment on whether or not he was properly advised as to the impact of the changes to his review application and/or his immigration status. The Tribunal is merely determining whether the visa criteria are met.

15. In this case, there is no dispute that there is not an approved nomination in respect of the applicant. This is an essential requirement for a Subclass 457 visa under the standard business sponsor stream.

16. At the time of this decision, there is not an approved nomination of an occupation under s.140GB relating to the applicant. It is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018. In these circumstances, the Tribunal finds that cl.457.223(4)(a) is not met.

17. 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 visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Wan Shum
    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.

    …