Mitchell (Migration)

[2021] AATA 4856

Mitchell (Migration) [2021] AATA 4856 (10 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sean Mitchell
Miss Megan Jay Kelly

CASE NUMBER:  1836009

HOME AFFAIRS REFERENCE(S):          BCC2018/934977

MEMBER:Katie Malyon

DATE:10 November 2021

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:

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

Statement made on 10 November 2021 at 2:02 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Recruitment Consultant – Tribunal approved nomination decision –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 6 December 2018 to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The applicants applied for the visas on 27 February 2018.  

2. At the time the 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).  The primary criteria must be satisfied by at least one applicant.  Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant, British national Sean Mitchell, was not the subject of an approved nomination by his employer and approved standard business sponsor Opus Recruitment Solutions Australia Pty Ltd (the Company).

4. Mr Mitchel appeared before the Tribunal on 4 November 2021 to give evidence and present arguments on behalf of the applicants at a MS Teams video hearing.  The Tribunal’s hearing was conducted as a combined hearing with the Tribunal’s review of the delegate’s refusal of the Company’s nomination (Tribunal Case No. 1833929).  The applicants were represented in relation to the review by their newly appointed registered migration agent, Ms Tanya Shroff of Deloitte Migration Services Pty Ltd.

5. On 10 November 2021, the Tribunal approved the nomination made by the Company in respect of the nominee Sean Mitchell for the nominated occupation of Recruitment Consultant ANZSCO 223112. Accordingly, the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are now met.

6. Given the Tribunal’s finding that the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations are now met, the appropriate course is to remit Sean Mitchell’s application for the visa to the Minister to enable consideration of the remaining criteria for a Subclass 457 visa.

7. The second named applicant - Miss Megan Jay Kelly - applied for her visa on the basis of being a member of the family unit of Sean Mitchell.  Accordingly, Miss Kelly’s application will be determined by reference to the outcome of Mr Mitchell’s application on remittal to the Department for reconsideration.

   DECISION

8. The Tribunal remits the application 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.

   Katie Malyon

   
   Member