Morada (Migration)

[2022] AATA 2719

Morada (Migration) [2022] AATA 2719 (15 June 2022)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr Joven Morada

Miss Jewel Anne Morada Mrs Joan Morada

Miss Joycee Paulene Lotivio Morada

REPRESENTATIVE:  Mr Eddy Erny (MARN: 0323211)

CASE NUMBER:  2114148

HOME AFFAIRS REFERENCE(S):           BCC2016/3030606

MEMBER:  Peter Emmerton

DATE:  15 June 2022

PLACE OF DECISION:  Adelaide

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 15 June 2022 at 1:03pm

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

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

CASES
Mora v Minister for Immigration and Border Protection [2018] FCA 1819

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).

1. The visa applicants applied for the visa on 12 September 2016.

1. 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.

1. The delegate refused to grant the visas on 16 May 2018 on the basis that cl 457.223(4)(a) was not met because the nomination was not approved.

1. The applicant then appealed to the Administrative Appeals Tribunal for a review of the decision.

1. The Tribunal affirmed the department’s decision on 17 May 2021.

1. The applicant subsequently successfully appealed the AAT decision to the Federal Circuit and Family Court of Australia, (FCFCA). On 12 October 2021, Registrar Van Der Westhuizen, in the Federal Circuit and Family Court of Australia, Melbourne (in Chambers) issued the following Orders;

‘ BY CONSENT, THE COURT ORDERS THAT:

1.  A writ of certiorari issue directed to the second respondent quashing the decision of the second respondent dated 17 May 2021.

2.  A writ of mandamus issue directed to the second respondent requiring it to determine the application made to it for review of the decision of a delegate of the first respondent dated 16 May 2018 according to the law.

THE COURT NOTES THAT:

The second respondent affirmed the decision of a delegate of the first respondent on the basis that the first applicant did not meet the criteria set out cl 457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (Cth), as he was not the subject of a nomination approved by the Minister (at [13]). Consequently, the second respondent found the second, third and fourth applicants were not members of the family unit of a person who satisfied the primary criteria for the visa.

The first respondent has conceded that the decision of the second respondent to affirm the decision of a delegate of the first respondent to refuse Dari’s Kitchen Pty Ltd’s application for approval of a nomination of a position identifying the first applicant is affected by

jurisdictional error (see Federal Circuit Court Proceedings No. SYG1111/2021 – Dari’s Kitchen Pty Ltd v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor), and has entered into consent orders to that effect. In circumstances where the outcome of the applicants' visa application before the second respondent was dependent upon the outcome of the second respondent's review of this related nomination application, it is appropriate for the decision of the second respondent in relation to the applicants' visa application to be set aside, and for the application to be remitted to the second respondent for redetermination according to law. Mora v Minister for Immigration and Border Protection [2018] FCA 1819 at [57].’

1. The applicants were represented in relation to the review.

1. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

1. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute. This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their individual circumstances.

1. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

Requirement for an approved nomination

1. 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.

1. An application for approval of a nomination of the occupation of Supply and Distribution Manager, ANZSCO 133611, in relation to Mr Joven Morada was lodged by Dari’s Kitchen Pty Ltd on 17 March 2018.

1. On 16 April 2018 the application was refused.

1. On 15 June 2022, the Tribunal set the Department’s decision not to approve the nomination of the occupation aside and substituted a decision that the nomination is approved. In these circumstances the Tribunal is satisfied that a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act.

1. Therefore cl.457.223(4)(a)(i) is met.

1. The Department’s records show that Dari’s Kitchen Pty Ltd was most recently approved as a Standard Business Sponsor on 12 April 2022 for 5 years until 12 April 2027. The Nomination was approved by the Tribunal on 15 June 2022 at which time the SBS was current.

1. Therefore cl.457.223(4)(a)(ii) is met.

1. The Tribunal relies on its findings in the nomination application, which was approved on 15 June 2022, to find that the approval of the nomination has not ceased as provided for in regulation 2.75.

1. Therefore cl.457.223(4)(a)(iii) is met.

1. For these reasons the requirements of cl.457.223(4)(a) are met.

1. 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.

DECISION

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

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

Peter Emmerton 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.