MAHATO (Migration)

[2020] AATA 3886

MAHATO (Migration) [2020] AATA 3886 (17 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Bijaya Kumar Mahato
Mrs Sunita Chaudhari
Miss Binisha Chaudhari

CASE NUMBER:  1727075

DIBP REFERENCE(S):  BCC2016/4405306

MEMBER:K. Chapman

DATE:17 September 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 17 September 2020 at 2:14pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – associated position nomination refused and refusal affirmed – no substantive response to tribunal’s invitation to comment – members of family unit – decision under review affirmed

LEGISLATION  

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

Migration Regulations 1994, Schedule 2, cls 457.223(4)(a), 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant, Mr Bijaya Mahato, applied for the visa on 30 December 2016, including the second and third named applicants in the visa application. The visa application was made on the basis of an associated application for nomination by IGA St Ives Pty Ltd (‘the nominator’).

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 first named 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 23 October 2017 on the basis that cl.457.223(4)(a) was not satisfied because the first named applicant (hereafter ‘the applicant’) was not the subject of an approved nomination as required. On 3 November 2017, the applicants applied to the Tribunal for review of the decision to refuse to grant the visas. A copy of the delegate’s decision was provided with their application for review.

5. The applicant appeared by telephone before the Tribunal on 27 August 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone.

6. Following the review hearing, on 2 September 2020, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting him to provide comments on, or response to, the following information:

   a.“The application for approval of the nominated position made by IGA St Ives Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal (see AAT matter 1724620). This means that the nominator’s application for the nominated position has not been approved.”

7. On 16 September 2020, the applicant’s representative responded to the s.359A invitation. He advised, inter alia, that “…we have received instructions from the client to inform AAT to proceed with the decision based on information available to the tribunal.” The Tribunal has duly considered this response.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

10. 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.

11. At the review hearing, the applicant advised that he is working as an Accountant for the nominator and wants to help this business grow. He also outlined his personal circumstances, including that he wants to remain in Australia. The applicant understood that he requires an approved nomination for the Subclass 457 visa to be granted.

12. The Tribunal notes that the nomination of the applicant for the position of Accountant (General) (ANZSCO 221111) by IGA St Ives Pty Ltd (the nominator) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.457.223(4)(a) are not met.

13. For the reasons expressed above, the Tribunal finds that the requirements for the standard business sponsor stream have not been satisfied. 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.

14. Given that the applicant has not met the requirements for the grant of a Subclass 457 visa, and is not the holder of a Subclass 457 visa, it follows that the second and third named applicants do not satisfy the requirements of cl.457.321. The Tribunal so finds.  

    DECISION

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

    K. Chapman
    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.