Moon (Migration)

[2021] AATA 3427

Moon (Migration) [2021] AATA 3427 (11 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Woo Sook Moon

CASE NUMBER:  1835650

HOME AFFAIRS REFERENCE(S):          BCC2018/1276738

MEMBER:Bridget Cullen

DATE:11 August 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 11 August 2021 at 12.55pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Standard Business Sponsor stream –no approved sponsor –applicant was not a subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359

Migration Regulations 1994, r 2.72 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).

2. The visa applicant applied for the visa on 16 March 2018.

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 visa on 16 November 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination at the time of the delegate’s decision.

5. The applicant appeared before the Tribunal on 14 July 2021 to give evidence and present arguments. The hearing was held conjointly with the hearing for the application for review lodged by Topokki Pty Ptd, the applicant’s prospective nominator. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

6. The applicant was represented in relation to the review by her registered migration agent, Ms Jungmin Lee (MARN 1279501) of Select Australia Visa & Migration Services.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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

9. 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.

10. The applicant applied for their visa on 16 March 2018, seeking to be nominated by Topokki Pty Ltd in the position of Chef (ANZSCO 351311). The Department refused that nomination on 1 August 2018 and provided the applicant the opportunity to comment. The applicant’s visa was subsequently refused on 16 November 2018. Topokki Pty Ltd lodged an application for review to the Tribunal on 21 August 2018. That application for review was affirmed by the Tribunal on 16 July 2021.

11. On 19 July 2021, the Tribunal wrote to the applicant, pursuant to s.359A, in the following terms:

    “In conducting the review, we are required by the Migration Act 1958 to invite you to comment on or respond to certain information which we consider would, subject to your comments or response, be the reason, or a part of the reason, for affirming the decision under review.

    Please note, however, that we have not made up our mind about the information.

    The particulars of the information are:

    ·On 16 July 2021, the Tribunal affirmed the decision to refuse an Employer Nomination application lodged by Topokki Pty Ltd, which identified you as the nominee.

    This information is relevant to the review because when you applied for your Subclass 457 visa on 16 March 2018, you identified this nomination for the purposes of satisfying subclause 457.223(4) of Schedule 2 to the Migration Regulations. It is a requirement of subclause 457.223(4)(a) that the nomination be approved.

    If we rely on this information in making our decision, we may find that as the nomination lodged by Topokki Pty Ltd has not been approved, that you are unable to meet subclause 457.223(4) of Schedule 2 to the Migration Regulations. If we make this finding, it may form the reason that the Tribunal were to affirm the decision under review.”

12. On 2 August 2018, the Tribunal received the following in response:

    “To. Member

    I, Woo Sook Moon, am writing this in great desperation.

    
    

    I know that this letter would not make any difference but I wish to assure you that the evidence we provided were all true and correct.

    The financial documents for the last few years we provided cannot be altered or fabricated. It was our mistake for not remembering the past employees’ names and wage amounts during the hearing. We truly believed that the figures are there on the accounting books so we did not need to remember them before the hearing.

    Also, the Member made incorrect decisions on my working hours. I was on student visa so I was not able to work full-time until my student visa finished in early 2020. After my study finished, I was going to start full-time work but the pandemic limited the operating hours so I was not able to do so. However, as soon as the lockdown was eased, I started working full-time.

    I wish to assure you that the comments and evidence we provided during the hearing and after the hearing are all true and correct. Thus, I am in doubt that your decision was fair and just.

    I now need to leave the country with big grief and frustration. Due to the national shortage of chefs, I need more time to hand over my duties and provide sufficient training to new staff members. Also, I have been in Australia for such a long time, I need at least 2 months to arrange the departure.

    Yours sincerely,

    <signed by applicant>”

13. The Tribunal understands that the applicant is distressed about the impact that the Tribunal’s decision in affirming the decision to refuse her employer’s nomination application has on her personal circumstances. The Tribunal is not able to comment on the matters that the applicant raises in relation to the nomination refusal decision, as that matter has been finalised by the Tribunal.

14. The Tribunal is unable to delay its decision making processes for the reasons expressed by the applicant. The appropriate avenue for the applicant to discuss her departure date from Australia would be with the Department directly.

15. The Tribunal finds that the applicant’s nomination application lodged by Topokki Pty Ltd, which identified the applicant as a nominee, has not been approved.

16. For these reasons the requirements of cl 457.223(4)(a) are not met.

17. 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 visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Bridget Cullen
    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.