Li (Migration)

[2019] AATA 2883

Li (Migration) [2019] AATA 2883 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Liyan Li
Ms Chunling Zhang
Mr Zhenguo Huang
Mr Weijia Li

CASE NUMBER:  1720138

DIBP REFERENCE(S):  BCC2016/3657055

MEMBER:Peter Emmerton

DATE:19 March 2019

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 19 March 2019 at 10:51am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – sponsorship for employment by standard business sponsor – nomination not approved – Café or Restaurant Manager ANZSCO 141111 – tribunal approved nomination – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994, Schedule 2, 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. The visa applicants applied for the visa on 2 November 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). 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.

4. The delegate refused to grant the visas on 15 August 2017 on the basis that cl.457.223(4)(a) was not met because the nomination was not approved.

5. The applicants appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Richard Lee on behalf of the nominating entity, Li Khoon Pty Ltd. This was combined with the hearing for MRT file ref 1717046, the nominator.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

10. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

11. The applicants rely on the evidence given before the Tribunal together with written submissions

    Requirement for an approved nomination

12. 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.

13. An application for approval of a nomination of the occupation Café or Restaurant Manager ANZSCO 141111, in relation to Mr Liyan Li was lodged by Li Khoon Pty Ltd on 1 November 2016.

14. On 17 July 2017 the application was refused.

15. On 19 March 2019, the Tribunal set the Department’s decision not to approve the nomination of the occupation aside and substituted a decision that the nomination is approved.[1] In these circumstances the Tribunal is satisfied that a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act.

    [1] AAT file reference 1717046

16. Therefore cl.457.223(4)(a)(i) is met.

17. The Department’s records show that the Li Khoon Pty Ltd was approved as a standard business sponsor on 16 April 2018. The Nomination was approved by the Tribunal on 19 March 2019 at which time the SBS was current and will remain so until 16 March 2023.

18. Therefore cl.457.223(4)(a)(ii) is met.

19. The Tribunal relies on its findings in the nomination application which was approved on 19 March 2019, to find that the approval of the nomination has not ceased as provided for in regulation 2.75.

20. Therefore cl.457.223(4)(a)(iii) is met.

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

22. 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

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

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

    Peter Emmerton
    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.