Liu (Migration)

[2018] AATA 32

Liu (Migration) [2018] AATA 32 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Jingxu Liu
Mr Yuechuan Xu
Mr Yinuo Xu

CASE NUMBER:  1621163

DIBP REFERENCE(S):  BCC2016/1380608

MEMBER:Bridget Cullen

DATE:9 January 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 09 January 2018 at 11:29am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457– Temporary Work (Skilled) visa – Approved nomination – Primary applicant did not satisfy the primary criteria – Invitation to comment sent by the Tribunal – Applicants did not respond

LEGISLATION

Migration Act 1958, ss 65
Migration Regulations 1994 Schedule 2 457.223, 457.223(4), 457.223(4)(a), 457.321 , 359A

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 6 April 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 28 October 2016 on the basis that 457.223(4)(a) was not met because the primary visa applicant was not the subject of an approved nomination.

5. The applicant appeared before the Tribunal on 17 November 2017 to give evidence and present arguments. The applicant was assisted by a NAATI Level 3 Accredited interpreter in the Mandarin and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

8. 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.

9. During the hearing, the Tribunal explained the impact of cl.457.223(4)(a), and advised the applicants that the outcome of this application for review would rise or fall on the outcome of the related nomination made by Alpha Jy Internation Trading & Service Pty Ltd, heard jointly with this application by the Tribunal.

10. Following the hearing, on 18 December 2017 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicants to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The letter explained that on 14 November 2017, the Tribunal affirmed the 28 October 2016 decision of the Department refusing the nomination lodged by Alpha Jy Internation Trading & Service Pty Ltd, being the nomination referred to in paragraph 457.223(4)(a) for the purposes of the primary visa applicant's visa application. The letter explained the relevance of this information and set out why this was adverse information.

11. The invitation was sent to the last address provided in connection with the review, being that of the applicant’s migration agent. The invitation advised that if the information or comments were not provided in writing by 2 January 2018, the Tribunal may make a decision on the review without taking further steps to obtain the information or comments.

12. The applicants have not provided the information or comments within the prescribed period.

13. There is nothing before the Tribunal which indicates that the primary visa applicant is the subject of an approved nomination.

14. Given the above, the Tribunal is not satisfied that the there is an approved nomination in respect of the primary visa applicant. For these reasons the requirements of cl.457.223(4)(a) are not met.

15. As the primary visa applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second and third named applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

16. 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 primary visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Bridget Cullen
    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.