Liyanage (Migration)

[2020] AATA 450

Liyanage (Migration) [2020] AATA 450 (18 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Savinda Roshadi Liyanage
Mrs Savani Geethika Caldera Hollu Pathirage
Master Sheven Revon Liyanage

CASE NUMBER:  1800196

DIBP REFERENCE(S):  BCC2017/817930

MEMBER:C. Packer

DATE:18 February 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 February 2020 at 3:47pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – 457 visa program repealed – nomination application made under a different visa subclass – request to delay decision declined – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 visas on 1 March 2017. 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 delegate refused to grant the visas on 14 December 2017 on the basis that cl.457.223(4) was not met because there was no approved nomination that concerned the first named applicant.

4. The applicants appeared before the Tribunal on 18 February 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

6. 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.

7. In documents and at hearing the applicant provided information that included:

   ·    The business Sisira Real Estate Australia Pty Ltd ATF S&N Malawaraarachchi Family Trust is an approved sponsor. The Tribunal (differently constituted) on 1 October 2019 had set aside the delegate’s decision of 8 August 2017 not to approve the application and substituted a decision that the business is approved as a standard business sponsor.

   ·    On 13 November 2019 the Department refused Sisira Real Estate Australia Pty Ltd’s application for approval of a nomination. The application made on 29 October 2019 was listed as Direct Entry under the Regional Sponsored Migration Scheme (187 visa).

   ·    Sisira Real Estate Australia Pty Ltd applied for a review of the refusal decision (Tribunal case 1934252).

   ·    On 16 December 2019 the Department refused the applicant’s application for a Regional Employer Nomination (subclass 187) visa in the Direct Entry stream.

   ·    The applicant applied for a review of the refusal decision (Tribunal case 2000038).

   ·    On 22 November 2019 the business Sisira Real Estate Australia Pty Ltd made a nomination application for a Temporary Skill Shortage (subclass 482) visa.

8. However, as discussed at hearing, Sisira Real Estate Australia Pty Ltd’s application on 29 October 2019 for approval of a nomination was made pursuant to r.5.19, and identified a Subclass 187 (Regional Sponsored Migration Scheme) visa in the Direct Entry stream. This nomination application, even if successful, would not satisfy the requirements of cl.457.223(4)(a).

9. As well, as discussed at hearing, the nomination application by Sisira Real Estate Australia Pty Ltd for a Temporary Skill Shortage (subclass 482) visa, even if successful, would not be a nomination for a 457 visa and so would not satisfy the requirements of cl.457.223(4)(a).

10. The Tribunal also notes that because of changes to the legislative scheme, nomination applications made on or after 18 March 2018 are not made in relation to applicants or proposed applicants for Subclass 457 visas (SLI 2013 No.146).

11. For these reasons the requirements of cl.457.223(4)(a) are not met.

    Conclusion

12. At hearing the applicant asked that the Tribunal delay making a decision in order for the nomination application by Sisira Real Estate Australia Pty Ltd for a Temporary Skill Shortage (subclass 482) visa to be assessed by the Department. The representative submitted that if that nomination was successful, the applicant would then make an application for a Temporary Skill Shortage (subclass 482) visa offshore. However, the Tribunal advised it did not propose to further delay the review as the matter would not assist the applicant to satisfy the requirements of the 457 visa application.

13. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    C. Packer
    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.