KUMAR (Migration)

[2018] AATA 5611

KUMAR (Migration) [2018] AATA 5611 (4 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr DEEPAK KUMAR

CASE NUMBER:  1804870

DIBP REFERENCE(S):  BCC2016/3398619

MEMBER:Mr S Norman

DATE:4 October 2018

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 04 October 2018 at 9:52am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – applicant not subject of approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 359A

Migration Regulations 1994, 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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The visa applicant applied for the visa on 13 October 2016. The Department delegate’s decision was lodged with the Tribunal.

2. 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 5 February 2018 on the basis that cl.457.223(4)(a) of the Regulations was not met.

4. The applicant appeared before the Tribunal on 7 September 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4) of the Regulations.

   Requirement for an approved nomination

7. 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.

8. On 28 March 2017, the Department refused the nomination application lodged by the applicant’s prospective employer ‘Executive Life P/L’. On 28 March 2017, the applicant was given an opportunity to either:

   ·     provide comment on their intentions regarding the visa application (including providing evidence that they are the subject of an approved nomination);

   ·     withdraw the visa application in writing; or

   ·     provide comment or any other information considered relevant to this adverse information.

9. On 24 April 2017, a new nomination application was lodged by Executive Life P/L. This nomination application was subsequently refused by the Department on 22 September 2017. On 22 September 2017, the applicant was given an opportunity to either:

   ·     provide comment on their intentions regarding the visa application (including providing evidence that they are the subject of an approved nomination);

   ·     withdraw the visa application in writing; or

   ·     provide comment or any other information considered relevant to this adverse information.

10. The delegate subsequently noted they were aware a third nomination application, again nominating the visa applicant, was lodged on 17 October (2017) by Executive Life P/L and the decision had not yet been finalised. However, the delegate then said that “two largely identical nomination applications have already been lodged and refused by the Department, and the applicant has been provided with an opportunity to comment after each of these refusal decisions”. The delegate then said that as at 2 February 2018, the applicant was not the subject of an approved nomination.  Accordingly, as the applicant was not the subject of an approved nomination, the delegate was not satisfied they had satisfied cl.457.223(4)(a) of the Regulations.

11. Furthermore, the delegate noted that no secondary applicants were included in the applicant’s visa application, and therefore the applicant was not a member of the family unit of a person who had been granted a subclass 457 visa after having satisfied the primary criteria. Therefore, the applicant did not meet the alternate criteria (being cl.457.321). 

12. At the Tribunal hearing, the applicant explained he travelled to Australia in April 2008 on a Student visa; since arriving he had completed studies in computing, accounting and business (an Advanced Diploma of Business had been obtained by the applicant); and his wife in Australia had held (or holds) a Student visa (though she had subsequently applied for a RSMS visa – a Regional Sponsored Migration Scheme 187 visa). The applicant also said that he was granted a subclass 457 visa in October 2012, and since that time had principally worked in a named Cafe in or near Newport, Sydney.

13. By s.359A letter of 18 September 2018 (dispatched by email to the authorised recipient), the applicant was advised the Tribunal had affirmed the Department decision not to approve the nomination in relation to them by their nominating employer (Executive Life Pty Ltd). The applicant was requested to provide written comment about this by 3 October 2018.

14. At around 6.40pm on 3 October 2018, the applicant lodged an online letter (dated 2 October 2018), claiming inter alia he was ‘looking for a new sponsor after the nomination application of [his] previous sponsor was refused and [that] decision was affirmed by the Tribunal’.

15. However, based on the information before it, the Tribunal is not satisfied the applicant meets cl.457.223(4)(a). Further, the Tribunal is therefore not satisfied the applicant meets cl.457.223(4) of the Regulations.  Next, no secondary applicants were included in the visa application, and the applicant is therefore not a member of the family unit of a person who had already been granted a subclass 457 visa after having satisfied the primary criteria. Therefore, the applicant does not meet the alternate criteria (being cl.457.321). 

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

    DECISION

17. 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.