Morada (Migration)

[2021] AATA 2025

Morada (Migration) [2021] AATA 2025 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joven Morada
Miss Joycee Paulene Lotivio Morada
Mrs Joan Morada
Miss Jewel Anne Morada

CASE NUMBER:  1815052

HOME AFFAIRS REFERENCE(S):          BCC2016/3030606

MEMBER:Stavros Georgiadis

DATE:17 May 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 17 May 2021 at 11:33pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – position of Supply and Distribution Manager – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cl 457.223

CASES

VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280

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 visas on 12 September 2016.

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 16 May 2018 on the basis that cl 457.223(4)(a) was not met because there was no approved nomination in respect of the position of Supply and Distribution Manager (ANZSCO 133611) relating to the applicant.

5. The first named applicant appeared before the Tribunal on 23 December 2020 after adjournment of an earlier hearing scheduled for 26 November 2020, to give evidence and present arguments. The Tribunal also received oral evidence from Mr Mark Hicale who is a further nominee for one of the 2 positions of Supply and Distribution Manager (ANZSCO 133611) in the applicant’s business in the related AAT casefiles 1904423 nominating Mr M Hicale and 1820426 regarding refusal of his respective Subclass 457 visa application.  The Tribunal also received oral evidence from Managing Director of Dari's Kitchen Pty Limited, Mr Yehiel Kaplan, in respect of the related AAT casefile 1811999 for the refusal of the nomination of the occupation in relation to the primary applicant in the present case. The related matters were heard together in a combined hearing.

6. The applicants were represented in relation to the review by their registered migration agent.

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) for the grant of the visas in respect of all applicants as claimed members of the same family unit as the primary applicant.

   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. On 17 May 2021 the Tribunal affirmed the decision under review not to approve the nomination of an occupation in relation to the applicant lodged by Dari's Kitchen Pty Limited in the related AAT casefile 1811999 on the basis of the reasons set out in the Decision Record of that date.  

11. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that in circumstances where there is no approved nomination, the applicants would not meet an essential criterion to satisfy cl.457.223(4)(a) for the grant of the visas and that this would be the reason, or part of the reason, for affirming the decision under review not to grant the Subclass 457 visas. The Tribunal explained that the applicants could seek additional time to comment on, or respond, which the Tribunal would consider. The applicant responded and confirmed that he understands and accepts that in such circumstances, the application for the visas would not be successful as an approved nomination is required for the grant of the visas: (cl.457.223(4)(a)(i)). There is no evidence before the Tribunal of any approved nomination in respect of the primary applicant.

12. The Tribunal has not returned the matter for any further hearing or submissions after making the nomination refusal decision as, in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 457 visas cannot be granted in the absence of an approved nomination in respect of the primary applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination.

13. Having considered the available evidence before it discussed, the Tribunal finds that the nomination of an occupation in relation to the applicant has not been approved as is required under cl.457.223(4)(a).

14. Therefore, the criteria in cl.457.223(4) are not met.

15. 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 applicants would be able to satisfy the specific criteria for those streams. The Tribunal therefore will affirm the refusal of the visas for all applicants including the second, third and fourth named applicants as claimed members of the same family unit as the primary applicant.

    DECISION

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

    Stavros Georgiadis
    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.