Lefcadito Alvares (Migration)

[2021] AATA 2410

Lefcadito Alvares (Migration) [2021] AATA 2410 (30 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Diego Lefcadito Alvares
Ms Lucelena Marcomini
Miss Sophia Marcomini Lefcadito Alvares

CASE NUMBER:  1801700

HOME AFFAIRS REFERENCE(S):          BCC2016/1125572

MEMBER:Katie Malyon

DATE:30 June 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications 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 30 June 2021 at 12:16 pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary work (Skilled)) – nomination approved upon review – decision under review remitted           

LEGISLATION

Migration Act 1958, ss 65, 140GB

Migration Regulations 1994, 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 Home Affairs to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visas on 15 March 2016.  The delegate refused to grant the visas on 2 January 2018.

2. The delegate made the decision to refuse the visa applications on the basis that cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the first named applicant, Brazilian national Diego Lefcadito Alvares, was not the subject of an approved nomination by his employer and approved standard business sponsor Brazilian Flame Pty Ltd ABN 24 600 603 085 (the Company).

3. Mr Lefcadito Alvares appeared before the Tribunal at a MS Teams video at Directions Hearings on 9 October 2020 and again on 14 October 2020.  The Directions Hearings were conducted as combined hearings with the Tribunal’s review of the delegate’s refusal of the Company’s nomination (Tribunal Matter No. 1732231).  Mr Lefcadito Alvares also appeared before the Tribunal on 6 May 2021 as a witness to give evidence and present arguments in relation to the Company’s nomination application.

4. The applicants and the Company were represented in relation to their respective review by their newly appointed registered migration agent, accredited immigration law specialist Nigel Dobbie of Visa Immigration Specialists Australia.  The representative also attended the hearings.  The hearings were conducted with the assistance of an interpreter in the Portuguese and English languages although the Tribunal notes Mr Lefcadito Alvares rarely used the services of the interpreter.

5. On 30 June 2021, the Tribunal approved the nomination made by the Company in respect of nominee Diego Lefcadito Alvares for the nominated occupation of Cafe or Restaurant Manager (Caterer specialization) ANZSCO 141111. Accordingly, the requirements of cl.457.223(4)(a) of the Regulations are now met.

6. The second and third named applicants - Ms Lucelena Marcomini and Miss Sophia Marcomini Lefcadito Alvares - applied for their visas on the basis of being a member of the family unit of Diego Lefcadito Alvares.  Their applications will be determined by reference to the outcome of Mr Lefcadito Alvares’ application on remittal to the Department for reconsideration.

   DECISION

7. The Tribunal remits the application 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.

   Katie Malyon

   
   Member