Mettu (Migration)

[2022] AATA 2922

Mettu (Migration) [2022] AATA 2922 (20 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Karthik Reddy Mettu
Mrs Deepthi Basani

REPRESENTATIVE:  Mr Subendra Vimalarajah (MARN: 9904303)

CASE NUMBER:  1834469

HOME AFFAIRS REFERENCE(S):          BCC2017/3251605

MEMBER:Peter Newton SC

DATE AND TIME OF

ORAL DECISION AND REASONS:         20 April 2022 at 1:48 pm (NSW time)

DATE OF WRITTEN RECORD:                4 May 2022

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the decisions under review with the direction that the primary review applicant meets the following criteria for a Subclass 457 visa:

· Clause 457.223(4)(a) of schedule 2 of the Regulations.

Statement made on 16 May 2022 at 1:19pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Café or Restaurant Manager – subject of an approved nomination – decision under review remitted

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 15 November 2018 (Department’s Decision) refusing to grant the visa applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (Cth) (Act).

2. At the hearing on 20 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The primary review applicant applied for the visa on 7 September 2017. The secondary review applicant is the primary review applicant’s wife. In this decision, unless indicated otherwise, I will refer to the primary review applicant as the nominee. 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 of the Migration Regulations 1994 (Cth) (Regulations).  One of the criteria to be satisfied at the time of the decision is clause 457.223 which requires the visa applicant to satisfy one of the alternative streams for the visa.  One of these streams is contained in 457.223 (4) which is set out in the Department’s Decision.  In the present case, specific claims have been made against 457.223(4) which applies to sponsorship or employment in an occupation by a standard business sponsor.  No claims have been made in respect of other alternative streams in clause 457.223. 

4. The delegate in this case refused the application for the visa on the basis that on 16 October 2018 the Nomination for the nominated position of Café or Restaurant Manager had been refused and accordingly at the time of the Department’s Decision, the nominee was not the subject of an approved nomination.  On this basis, the delegate found that the nominee did not meet the requirements of paragraph 457.223(4)(a) and consequently clause 457.223 was not met.  As this primary criteria was not satisfied, the delegate did not assess the application against any other required criteria. 

5. On 23 November 2018, the applicants applied to the Tribunal to review the Department’s Decision.  The application was heard concurrently with an application for review by the nominating employer against the decision by the Department of Home Affairs on 16 October 2018, refusing its application for approval of the nominated position of café/restaurant manager.  At the hearing, evidence in one application was evidence in the other. 

6. The nominee appeared at the hearing by telephone.  Mr Sharma, the managing director and CEO of the nominating employer, also appeared at the hearing.  The nominating employer and the applicant nominee were ably represented by their agent and lawyer, Mr Vimalarajah.  Mr Vimalarajah also appeared at the hearing by telephone. 

7. For the following reasons, the tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary applicant meets the requirements of clause 457.223(4). 

9. Clause 457.223(4)(a) requires an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

10. As indicated, on 16 October 2018 the Department refused the nomination by the nominating employer for a Temporary Business Entry visa for the nominated position of café or restaurant manager.  On that basis, the Department refused the nominee’s application for a visa.  Prior to delivering this decision, I determined the application for review by the nominator of the Department’s Decision refusing its nomination.  The Tribunal set aside that decision not to approve the nomination and substituted a decision that the nomination is approved.  On this basis, there is now an approved nomination in respect of the applicant nominee which has not ceased. 

11. For these reasons, the requirements of clause 457.223(4)(a) are met. Given the above findings, the appropriate course is to remit the application for the visa to the minister to consider the remaining criteria for subclass 457 visa.

    DECISION

12. The Tribunal remits the decisions under review for reconsideration with the direction that the primary review applicant meets the following criteria for a subclass 457 visa: 

    ·Clause 457.223(4)(a) of schedule 2 of the Regulations.

    Peter Newton SC
    Member