Khasria (Migration)

[2019] AATA 6282

Khasria (Migration) [2019] AATA 6282 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Narinder Pal Singh Khasria

CASE NUMBER:  1901764

DIBP REFERENCE(S):  BCC2018/907177

MEMBER:Mr S Norman

DATE:16 October 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 16 October 2019 at 1:40pm

CATCHWORDS
MIGRATION –Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship stream – employers’ position nomination refused – application for review of refusal withdrawn – legislative amendments to visa class – no response to tribunal’s s 359A letter – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), 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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 26 February 2018. 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.

3. The delegate refused to grant the visa on 7 January 2019 on the basis that cl.457.223(4)(a) was not met. The applicant was represented in relation to the review by his registered migration agent.

4. 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

5. 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.

6. The Department delegate refused the applicant’s nominating employer (P & A Group Investments P/L), their nomination application. As there was no approved nomination in place, the Department invited the applicant to comment about this within a prescribed period. At the date of the delegate’s decision, no comment had been received. The delegate then found the applicant was not the subject of an approved nomination; and that the applicant did not meet cl.457.223(4)(a) or cl.457.223. The delegate then refused the application for the Temporary Business Entry visa.

7. By s.359A letter of 1 October 2019 (emailed to the authorised recipient), the applicant was advised:

   ·     On 1 October 2019, the Tribunal accepted the withdrawal of the merits review application by your nominating employer (Annilax Enterprises Pty Ltd)

   ·     it is a requirement for approval of the visa application that a nomination of an occupation in relation to you has been approved (see cl.457.223(4))

   ·     a review of your file suggests there is now no material nomination application (pending or finalised) which relates to your visa application

   ·     the Migration Amendment (Temporary Skill Shortage visa and Complimentary Reforms) Regulations 2018, commenced on 18 March 2018. As a result, the subclass 457 Visa program was repealed and closed to new applications from that date onwards

   ·     the subclass 482 (Temporary Skills Shortage) visa that commenced on 18 March 2018 is not compatible with the nomination application made before then

8. Amongst other things, the applicant was also advised that this information was relevant to the review because it suggested the applicant may now be unable to be granted, the type of visa applied for. The applicant was then invited to give comments on or respond to the above information in writing by 15 October 2019. At the date and time of this decision, no response had been received. In the circumstances of this case, the Tribunal has decided to proceed to make its decision based on the information before it.

9. That being said, as the delegate’s decision to refuse the nomination approval has been affirmed by the Tribunal, cl.457.223(4)(a) has not been met. After considering all the evidence, the Tribunal is also not satisfied that cl.457.223 is met.

10. 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 the streams.

    DECISION

11. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Mr S Norman
    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.