LEEM (Migration)

[2017] AATA 752

LEEM (Migration) [2017] AATA 752 (12 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chang Hun LEEM
Ms Mi Hee PARK
Miss Hannah LEEM
Mr Daniel LEEM

CASE NUMBER:  1605599

DIBP REFERENCE(S):  BCC20152390206

MEMBER:Christopher Smolicz

DATE:12 May 2017

PLACE OF DECISION:  Adelaide

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 12 May 2017 at 10:29am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – Sponsorship by standard business sponsor – Previous self-sponsorship by own company – Tribunal review affirmed – New nomination by approved business sponsor

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 457, cl 457.223(4)(a)

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. 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 applicants appeared before the Tribunal on 9 February 2017 and 14 March 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicants were represented in relation to the review by their registered migration agent.

   Background

4. Mr Chang Hun Leem and Mrs Mi Hee Park (Mrs Park) are citizens of South Korea. They are married and have three children.

5. On 23 August 2011 Mr Leem was granted a subclass 457 visa which valid to 23 August 2015. Mr Leem was sponsored by Can Tile Services Pty Ltd (Can Tile) in the position of Wall and Floor Tiler. He worked for Can Tile from June 2010 to July 2015.

6. In about July 2015 Can Tile advised Mr Leem that due to financial pressure they were unable to continue to sponsor him to work in Australia. The Director of Can Tile suggested to Mr Leem that he start up his own company so that he could remain in Australia and continue to work for him as a sub-contractor.

7. It was submitted that Mr Leem and Mrs Park spoke to a migration agent to explore the possibility of “self-sponsorship”. On 29 June 2015 Mrs Park and Mr Leem started up an Australian company and became directors of CH Tiling Service Pty Ltd (CH Tiling).

8. On 18 August 2015 Mrs Park as the Managing Director of CH Tiling applied to the Department to sponsor Mr Leem (her husband) for the position of Wall and Floor Tiler. Mr Leem applied for the 457 visa on 18 August 2015.

9. On 8 December 2015 the Department refused to approve nomination on the basis that the applicant did not satisfy r.2.72(10)(f) because the delegate did not consider the position associated with the nominated occupation to be genuine. As consequence the associated subclass 457 visa application of the nominee (Mr Chang Hun Leem) was refused on 7 April 2016: cl.457.223(4)(a)(i).

10. On 4 April 2017 the Tribunal affirmed the Department’s decision not to approve nomination made by CH Tiling Services Pty Ltd.[1]

    [1] See AAT file ref: 1517891

11. On 7 April 2017 the Tribunal wrote to the first named applicant pursuant to section 359(2) inviting him to provide information that either he was the subject of an approved nomination or that he would meet this requirement in the near future by reason of having the current support of an approved business sponsor who had lodged an active nomination application with the Department. 

12. On 13 April 2017 the Tribunal was advised that a new nomination application was lodged by Top Tiling Services Pty Ltd for the position of Wall and Floor Tiler.  The first named applicant was identified as the nominee. On 11 May 2017 the Department approved the nomination made by Top Tiling Services Pty Ltd.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

15. 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.

16. The Tribunal is satisfied that the nomination of an occupation in relation to the first named applicant has been approved under s.140GB of the Act and that the sponsor was a standard business sponsor at the time the nomination was approved.  There is no information before the Tribunal to suggest that the approval of the nomination has ceased, as provided for in Regulation 2.75.

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

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.

    Christopher Smolicz
    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.