Lin (Migration)

[2019] AATA 2209

Lin (Migration) [2019] AATA 2209 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr You-ren Lin
Ms Yu-hsuan Li

CASE NUMBER:  1819727

DIBP REFERENCE(S):  BCC2017/1954697

MEMBER:Peter Emmerton

DATE:4 March 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 04 March 2019 at 9:28am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination of an occupation – nomination refused – member of the family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations (Cth) 1994, r 2.72; Schedule 2, cls 457.223, 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 visa applicants applied for the visa on 2 June 2017.

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 20 June 2018 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, via video, on 14 February 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Derek Goh on behalf of the nominating entity, Zen Japanese Vegetarian Restaurant Pty Ltd. This was combined with the hearing for MRT file ref 1812914, the nominator.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

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

9.    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.

10.   The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

Requirement for an approved nomination

11. 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.

12.   On 30 May 2017, the applicant’s sponsoring employer, Zen Japanese Vegetarian Restaurant Pty Ltd applied for approval for a nomination for the position of Marketing Specialist. Mr You-ren Lin is the nominee for the position. On 18 April 2018 the Department refused the application on the basis the nomination did not satisfy r.2.72.(10)(aa) of the Regulations. In a separate decision, the Department refused Mr Lin’s subclass 457 visa application because Zen Japanese Vegetarian Restaurant Pty Ltd’s nomination was not approved.

13.   Zen Japanese Vegetarian Restaurant Pty Ltd and Mr Lin applied to the Tribunal to review the Department’s decisions.

14.   On 14 February 2019 the Tribunal affirmed the decision of the Department refusing approval of the nomination of an appointment made by Zen Japanese Vegetarian Restaurant Pty Ltd for the position of Marketing Specialist (ANZSCO 225113).[1]

[1] AAT Migration and Refugee Division Case No. 1812914

15.   On 14 February 2019 the Tribunal wrote to the applicant pursuant to s.359A of the Act and advised him that the Tribunal had affirmed the decision of the Department refusing approval of the nomination of an appointment made by Zen Japanese Vegetarian Restaurant Pty Ltd.

16. The letter advised the applicant the information is relevant to the review because without evidence of the approval of the relevant nomination, he cannot satisfy the provision at clause 457.223(4) of the Migration Regulations.

17. The applicant was advised that if he cannot satisfy cl.457.223(4) the Tribunal would affirm the decision of the Department of Immigration and Boarder Protection refusing him the visa. As a consequence the secondary visa applicant would also be unable to satisfy cl.457.321 as a member of the family unit of a person who holds a subclass 457 visa.

18.   The applicant was invited to provide a written response by 28 February 2019. The letter advised the applicant that if he did not comment or respond within the period allowed or extended, the Tribunal may make a decision on the review without taking any further action.

19.   At time of making this decision the applicant has not responded to the letter.

20.   The Tribunal finds that the applicant cannot satisfy an essential criterion because the nominated position is not approved. The Tribunal finds the applicant is unable to satisfy 457.223(4).

21.   As a consequence the Tribunal also finds that the secondary visa applicant is unable to satisfy cl.457.321 as members of the family unit of a person who holds a subclass 457 visa.

22.   Therefore, cl.457.321 is not met.

23.   For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream 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 visa applicant would be able to satisfy the specific criteria for those streams.

DECISION

24.   The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

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.