Malone (Migration)

[2021] AATA 1748

Malone (Migration) [2021] AATA 1748 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Rebecca Margaret Malone

CASE NUMBER:  1819565

HOME AFFAIRS REFERENCE(S):          BCC2017/1848365

MEMBER:Alan McMurran

DATE:26 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 26 May 2021 at 9:43am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Science Technicians nec – subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

   Visa application

2. The visa applicant applied for the visa on 24 May 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 (Cth) (the Regulations).

4. 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.

   Department refusal

5. The related nomination application by the nominator, Amcosh Pty Ltd, for the position of Science Technicians nec (ANZSCO 31149) was refused by the Department on 19 April 2018.  A review sought by the nominator and filed in the Tribunal[1] on 20 May 2018 was withdrawn by the nominator on 26 November 2020.

   [1] T case 1813279

6. The delegate refused to grant the visa on 20 June 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

   Tribunal process

7. The applicant sought review of the visa refusal by application lodged in the Tribunal on 5 July 2018.

8. On 4 May 2021, the case was allocated to a Member for decision.

9. On 4 May 2021, the Tribunal sent an invitation to the applicant to attend a hearing on 28 May 2021 by telephone, as per the Tribunal’s Covid – 19 Practice Direction, and in an endeavour to have the matter resolved in accordance with the Tribunal’s objective of an outcome which is fair, just, economical, informal and quick.[2]

   [2] s.2A, Administrative Appeals Tribunal Act

10. On 12 May 2021, the applicant sent in her response to the hearing invitation on the Tribunal’s standard form. The applicant answered “no” to the question “Will you take part in the hearing?” The response includes the applicant’s acknowledgement and consent to the Tribunal deciding the case on the papers, without taking further steps to allow the applicant to appear.

11. The Tribunal then cancelled the hearing date for 28 May 2021. The Tribunal has proceeded under s.360 (2)(b) of the Act without a hearing and on the available information.

12. The applicant was represented in relation to the review by her registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    Requirement for an approved nomination

15. 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.

16. The Tribunal finds on the information before it that the application by the nominator was refused by the Department on 19 April 2018. The application for review by the nominator in the Tribunal was withdrawn on 26 November 2020.

17. The Tribunal finds there is no outstanding application in the Tribunal by the nominator for review, or related to the applicant, or which remains to be determined for the nominated position.

18. The Tribunal finds that the applicant is not the subject of a nomination of an occupation in relation to the applicant and as nominated, which has been approved, for the position of Science Technicians nec (ANZSCO 31149), under s.140GB of the Act.

19. For these reasons the requirements of cl. 457.223(4)(a) are not met, and the applicant does not meet cl.457.223(4).

20. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met.

21. 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

22. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Alan McMurran
    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.