LEE (Migration)

[2017] AATA 2346

LEE (Migration) [2017] AATA 2346 (10 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hakin LEE
Ms HYEYOUNG JUNG

CASE NUMBER:  1616788

DIBP REFERENCE(S):  BCC2016/1067759

MEMBER:Ian Berry

DATE:10 November 2017

PLACE OF DECISION:  Brisbane

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

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

Statement made on 10 November 2017 at 9:27am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Subject of an approved nomination by a standard business sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 457.223, cl 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The both applicants applied for the visa on 11 March 2016.

3. 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).

4. One of the criteria to be satisfied at the time of decision is cl.457.223 which requires the first named 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.

5. The delegate refused to grant the visas on 22 September 2016 on the basis that cl.457.223(4)(a) was not met because the first named applicant did not have a standard business sponsor at the time the nomination was approved. Therefore, the first named applicant did not meet clause 457.223(4)(a) of schedule 2 to the Regulations.

6. The second named applicant was not then a family member of a person who holds a UC 457 visa.  Therefore the second named applicant did not meet clause 457.321, and her visa was refused.

7. The applicants appeared before the Tribunal on 2 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the first named applicant. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

8. The applicants were represented in relation to the review by their registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

11. Clause 457.223(4)(a) requires that there be an approved nomination of an occupation relating to the first named applicant by a standard business sponsor that has not ceased.

12. The first named applicant’s then sponsor Mr Young -Schik Kim applied to be a standard business sponsor.  His application for such sponsorship was refused by the Minister on 8 June 2016.

13. The first named applicant’s UC 457 visa was lodged on 11 March 2016 but refused on 22 September 2016 by reason of his then sponsor’s application been refused.

14. The first named applicant lodged his application to review on 11 October 2016.

15. Between the time the first named applicant lodges his application to review and the hearing on 2 November 2017, he is nominated by a standard business sponsor whose nomination had been approved. Therefore, the applicant has met r.457.223(4)(a):

    a.As a nomination of the applicant’s occupation has been approved;

    b.The Standard Business Sponsor made this nomination; and

    c.The approval above, has not ceased.

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

17. The second named applicant meet clause 457.324(1) of schedule 2 to the Regulations, in that she is an applicant who is included in a nomination that is required in respect of the primary applicant..

18. 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

19. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa cl.457.223(4)(a) of Schedule 2 to the Regulations.

    Ian Berry
    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.