LEE (Migration)

[2019] AATA 4229

LEE (Migration) [2019] AATA 4229 (11 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sangkyung LEE

CASE NUMBER:  1814482

DIBP REFERENCE(S):  BCC2016/2920262

MEMBER:Susan Trotter

DATE:11 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 11 September 2019 at 4:27pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – applicant not subject of approved nomination – Subclass 457 visa replaced with Subclass 482 – approved nomination for Subclass 482 visa cannot meet criterion for  Subclass 457 visa – Subclass 457 visa application cannot be linked with approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 48, 65
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994(Cth), r 2.72, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 27 April 2018 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 2 September 2016. At the time the 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).

3. One of the criteria to be satisfied at the time of decision is cl.457.223 of Schedule 2 to the Regulations, which requires the visa applicant (the applicant) to satisfy one of the alternative ‘streams’ for the visa.

4. 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.

5. The delegate refused to grant the visa on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination as required.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 18 May 2018 and provided the Tribunal with a copy of the delegate’s decision record.

7. The applicant appeared before the Tribunal in person on 20 August 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicant was represented in relation to the review by his registered migration agent, who attended the hearing by telephone.

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

   CONSIDERATION

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

    Requirement for an approved nomination

11. At the time of the visa application, cl.457.223(4)(a) required that there be an approved nomination of an occupation relating to the visa applicant by a standard business sponsor that has not ceased.

12. The Tribunal discussed with the applicant at hearing that, information canvassed in the delegate’s decision, a copy of which was provided to the Tribunal when the applicant made his application. That information was that there was no approved nomination of an occupation relating to the visa applicant.

13. The Tribunal discussed with the applicant and his representative that there is no approved nomination in relation to the Subclass 457 visa but that there is now a nomination that has been approved in relation to a Subclass 482 visa and that the applicant seeks for the matter to be remitted so that the applicant can make a Subclass 482 visa application.

14. The Tribunal further discussed with the applicant and his representative that the Tribunal’s power is limited to considering whether the criteria for the Subclass 457 visa is met and that due to changes to the legislative scheme on 18 March 2018, nomination applications made on or after that date are not made in relation to applicants or proposed applicants for Subclass 457 visas, and that an approved nomination for a Subclass 482 visa cannot meet the necessary criterion for a Subclass 457 visa.[1] The Tribunal acknowledged that the delegate’s decision to refuse the applicant’s Subclass 457 visa was not made until after 18 March 2018 and that a refusal of the applicant’s Subclass 457 means that the applicant may be subject to a s.48 bar in relation to future visa applications. However, the Tribunal noted that it could only remit the matter for reconsideration if satisfied the criterion in issue, cl.457.223(4)(a), was met, which criterion was not on the evidence before the Tribunal met and which, given the change in legislation, cannot now be met.

    [1] Rather, they are made in relation to applicants/proposed applicants for Subclass 482 visas or to holders of Subclass 482 or Subclass 457 visas. See r.2.72(1) as repealed and substituted by F2018L00262.

15. Written submissions provided to the Tribunal on behalf of the applicant dated 7 November 2018 included as follows:

    (a)  On 18 April 2018, the Department of Home Affairs approved a nomination in favour of Donnybrook Berries Pty Ltd to employ the applicant under a Subclass 482 visa.

    (b)  It is submitted that the Department has substituted the Subclass 457 visa with the Subclass 482 via however the applicant’s Subclass 457 visa application cannot be linked with the approved nomination as the Subclass 457 (scheme) is no longer in operation.

    (c)  Because the applicant’s Subclass 457 visa application was refused, he is subject to s.48 of the Act which restricts him from applying for any subsequent application onshore following the visa refusal.

    (d)  The matter should be remitted to the Department for further assessment to allow the applicant to lodge a Subclass 482 visa application, noting that the applicant’s Subclass 457 visa application was lodged on 2 September 2016 and the Department did not make a decision in relation to the application until 27 April 2018.

16. The Tribunal asked the applicant’s representative at hearing if there were any further submissions sought to be made. The applicant’s representative indicated that there were no further submissions to be made.

17. The legislative amendments introduced on 18 March 2018 by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, repealed the Class UC Subclass 457 (Temporary Work (Skilled)) visa and replaced it with the new Class GK Subclass 482 (Temporary Skill Shortage) visa. The amending Regulations also introduced a new set of substantive criteria and procedural requirements for the nomination of occupations in relation to applicants of Subclass 482 visas. The effect of these amendments is that any future new sponsorship and nomination, would not meet the requirements in cl.457.223(4)(a) because a nomination under r.2.72 made after 18 March 2018 can only support an application in respect of an applicant for the Subclass 482 (Temporary Skill Shortage) visa or existing Subclass 482 or Subclass 457 visa holders: r.2.72(1)(b). A nomination lodged after 18 March 2018 cannot support an application for a Subclass 457 visa that has not been finally determined.

18. Having taken all of these matters into account, the Tribunal therefore finds that at the time of its decision there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor of the relevant kind that has not ceased.

19. There is no other evidence before the Tribunal of any other nomination application and approval that would satisfy the requirement.

20. For these reasons the requirements of cl.457.223(4)(a) are not met.

    Conclusion

21. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream for a Subclass 457 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.

22. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.

    Other Matters

23. Given the applicant’s representative’s written submissions seemed to suggest that the Tribunal should remit the matter generally to the Department to allow the applicant to lodge a Subclass 482 visa application (which as discussed at hearing the Tribunal has no power to do), the Tribunal asked at hearing whether the Tribunal was being requested to recommend Ministerial Intervention. The applicant’s representative responded in the negative to that query of the Tribunal. The Tribunal does not propose to recommend the matter to the Minister for intervention; however, it remains open to the applicant to do so if they believe that they have sufficient grounds to warrant Ministerial intervention.

    DECISION

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

    Susan Trotter
    Member