Le (Migration)

[2018] AATA 3119

Le (Migration) [2018] AATA 3119 (25 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Tu Anh Le

CASE NUMBER:  1709232

DIBP REFERENCE(S):  BCC2016/7984581

MEMBER:Wan Shum

DATE:25 July 2018

PLACE OF DECISION:  Sydney

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

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

Statement made on 25 July 2018 at 4:12pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – Standard business sponsor stream – Nomination approved by the Tribunal – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 457.223

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) Subclass 457 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 8 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 primary visa applicant to satisfy one of the alternative ‘streams’ for the visa. One of these streams is contained in cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. The standard business sponsor in this case is Fine Fettle Foods Pty Ltd, who applied for approval on 19 October 2016 for an Accountant (ANZSCO code: 221111).

4. The nomination was refused and, on 7 April 2017, the delegate refused to grant the visa on the basis that cl.457.223(4)(a) was not met because the related nomination was not approved.

5. The applicant appeared before the Tribunal on 26 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Petrina Wisniewski on behalf of the business. Their representative was also present.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant meets the requirements of cl.457.223(4)(a). This clause requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

7. On 25 July 2018, the Tribunal approved Fine Fettle Foods Pty Ltd’s application for the nomination of an Accountant under s.140GB of the Act. The nomination relates to the applicant. There is thus an approved nomination in respect of the applicant; and that nomination has not ceased.

8. For these reasons the requirements of cl.457.223(4)(a) are met.

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

   DECISION

10. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

    Wan Shum
    Member