MANPREET KAUR (Migration)

[2018] AATA 4803

MANPREET KAUR (Migration) [2018] AATA 4803 (16 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Manpreet Kaur
Mr Amrik Singh

CASE NUMBER:  1723746

DIBP REFERENCE(S):  BCC2016/2308304

MEMBER:Wan Shum

DATE:16 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 16 October 2018 at 9:42am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – Tribunal approved nomination – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
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) Subclass 457 visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied for the Subclass 457 visa on 9 July 2016. 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 these streams is contained in cl.457.223(4) which applies to sponsorship for employment in an occupation by a standard business sponsor. The standard business sponsor in this case is the Trustee for JS & MK Rai Family Trust, who applied for approval on 21 March 2017 for the occupation of Primary Products Inspectors (nec) (ANZSCO code: 311399) in relation to the first named applicant.

3. The nomination was refused and, on 15 September 2017, the delegate refused to grant the visas on the basis that cl.457.223(4)(a) was not met because the nomination in relation to the first named visa applicant was not approved.

4. The applicants were represented in relation to the review by a registered migration agent, who also represented the sponsor.

5. The applicants appeared before the Tribunal on 29 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jinderpal Rai, the owner, and Mr Harjaap Rai, the manager. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi (Indian) and English languages. Their representative assisted by teleconference.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether there is an approved nomination of an occupation relating to the first named applicant by a standard business sponsor that has not ceased.

7. On 11 October 2018, the Tribunal approved the Trustee for JS & MK Rai Family Trust’s application for the nomination of a Primary Products Inspectors (nec) under s.140GB of the Act. The nomination relates to the first named applicant. There is thus an approved nomination in respect of the first named applicant; and that nomination has not ceased. The requirements of cl.457.223(4)(a) are thus met.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa. This will include an assessment of the first named applicant’s suitability for the position.

   DECISION

9. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

   ·cl.457.223(4)(a) of Schedule 2 to the Regulations.

   Wan Shum
   Member