Matte (Migration)

[2021] AATA 3484

Matte (Migration) [2021] AATA 3484 (7 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Giovani Matte
Mrs Carolina Thomas Ruschel
Miss Raven Thomas Matte

CASE NUMBER:  1828115

HOME AFFAIRS REFERENCE(S):          BCC2017/2306052

MEMBER:Namoi Dougall

DATE:7 September 2021

PLACE OF DECISION:  Sydney

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

Statement made on 07 September 2021 at 4:36pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application affirmed on review – legislative amendments mean new nomination application cannot be made – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB, 359A, 363(1)(b)
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 457.321
Administrative Appeals Tribunal Act 1975 (Cth), s 2A
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018

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 applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 29 June 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). 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 24 September 2018 on the basis that cl 457.223(4)(a) was not met because Mr Giovani Matte (the primary visa applicant) was not the subject of an approved nomination by a standard business sponsor. The application for nomination approval that had been made by the primary visa applicant’s prospective employer SJS Group Holdings Pty Ltd ATF SJS Family Trust (the nominating business) had been refused by the Department.

5. On 24 August 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicants to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review. The relevant information before the Tribunal was that the nomination application made the nominating business was refused by the Department on 16 August 2018 and the application for review of that decision was affirmed by the Tribunal on 21 April 2021.

6. The Tribunal also informed the applicants in the letter that due to the introduction of The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations), which commenced 18 March 2018 and repealed and replaced the criteria for nominations relating to proposed Subclass 457 visa applicants, a new application for approval of a nomination in respect of an outstanding 457 visa application can no longer be made.

7. The Tribunal’s letter also stated that the information is relevant to the review because it is a requirement for the grant of the visa that a nomination of an occupation in relation to the applicants has been proved under s.140GB of the Act: cl.457.223(4)(a). The Tribunal’s letter then explained that if the Tribunal relied on the above information in making its decision, then it may find that the nomination of an occupation in relation to the applicants has not been approved and that a new application cannot be made. Consequently, the applicants would not meet the requirements of cl.457.223(4)(a) and the decision under review would be affirmed.

8. The primary visa applicant appeared before the Tribunal on 7 September 2021 to give evidence and present arguments.

9. At the hearing the Tribunal asked if the primary visa applicant had any comments to make on the information set out in the Tribunal’s letter of 24 August 2021 and he referred to the accounting information being provided late to the Tribunal which is why the Tribunal affirmed the Department’s decision. The Tribunal explained that as the primary visa applicant was not subject to an approved business nomination, he could not meet relevant criteria for the grant of a Subclass 457 visa application.

10. The primary visa applicant also requested that the Tribunal postpone the making of its decision due to the COVID-19 Pandemic. The Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, to provide a mechanism of review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975. 

11. The Tribunal has considered whether it should adjourn the review under s.363(1)(b) of the Act, however, the Tribunal is not prepared to postpone making its decision just on the basis of COVID-19 Pandemic particularly as, after the Tribunal affirmed the business nomination decision on 21 April 2021, the applicants could not meet the criteria in clause 457.223(4)(a) nor are they able to be the subject of a new business nomination due to the Amending Regulations. The Tribunal is aware that the COVID-Pandemic does raise difficulties but the Tribunal did suggest that the applicants seek advice on options that are available to them.

12. The applicants were represented in relation to the review by their 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)(a).

    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. In this case, the applicants applied for the visa on the basis of a nomination of an occupation made by the nominating business. The nomination was refused on 31 August 2018, and the nominating business applied to the Tribunal for review of that decision. On 21 April 2021, the Tribunal affirmed the decision to refuse the business nomination.

17. Further, as stated above, the Tribunal wrote to the applicants pursuant to s.359(A) on 24 August 2021 in which the primary visa applicant was put on notice that he may not satisfy the requirements in cl. 457.223(4)(a).

18. The evidence before the Tribunal is that the nomination in relation to the primary visa applicant in support of the Subclass 457 visa has been refused. That decision has been reviewed by the Tribunal and the delegate’s decision affirmed, meaning that the decision refusing the nomination stands. As the primary visa applicant is not the subject of an approved nomination that can support their application for a Subclass 457 visa, it follows that the primary visa applicant does not satisfy the requirement in cl.457.223(4)(a).

19. 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.

20. The remaining applicants rely on their status as members of the family unit of the primary visa applicant.  As the primary visa applicant does not satisfied primary criteria for the grant of a Subclass 457 visa, the remaining applicants do not satisfy cl.457.321.

    DECISION

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

    Namoi Dougall
    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.