Nair (Migration)

[2021] AATA 1473

Nair (Migration) [2021] AATA 1473 (27 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rahul Shankarbhai Nair

CASE NUMBER:  1811992

HOME AFFAIRS REFERENCE(S):          BCC2017/113526

MEMBER:Amanda Mendes Da Costa

DATE:27 April 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 27 April 2021 at 2.03pm

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

LEGISLATION
Migration Act 1958, s 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 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 10 January 2017.

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 18 April 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of an approved nomination.

5. The applicant appeared before the Tribunal on 19 April 2021 to give evidence and present arguments.  

6. Although the applicant was represented in relation to the review by his registered migration agent, the agent did not participate in the hearing.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a telephone hearing and the applicant was represented by his migration agent in the review (although the agent did not participate in the hearing).

8. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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

11. 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.

12. On 25 March 2021 the Tribunal wrote to the applicant inviting him to comment on or respond to information which it considered would, subject to the applicant’s comments, be the reason or part of the reason for affirming the decision under review.  The particulars of the information were that the application for approval of the nominated position for the applicant, made by Shivan Enterprise Pty Ltd  (the nominator) was refused by the Department. The nominator sought a review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 28 October 2020. 

13. The Tribunal explained to the applicant that this information was relevant to the review because it was a requirement for the grant of the visa that the position specified in his visa application was the subject of an approved nomination.  The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in his visa application was not the subject of an approved nomination.  This would mean that he did not satisfy a requirement for the grant of the visa, and that the Tribunal must affirm the decision under review.

14. The Tribunal advised the applicant that any comments or response should be provided in writing by 8 April 2021.

15. On 6 April 2021 the applicant provided a written response which he notified the Tribunal that he had appealed the rejected nomination decision.

16. In his oral evidence the applicant told the Tribunal that he had been employed by the nominator since 2016.  In 2018 the previous owner wanted to sell the business and as he was sponsored by the nominator and wanted to continue his employment, the applicant and two of his friends purchased the business.  They have been operating it together since 2018.  The applicant explained that after his visa was refused, he had no other option but to continue working in the business and could not look for any other work or another sponsor, as he was sponsored to work for the nominator.  The applicant said that the nominator had recently lodged an appeal to the Federal Circuit Court in respect of the Tribunal’s decision  to affirm the delegate’s decision, refusing the nomination application.

17. The applicant requested that the Tribunal defer its decision regarding this review until after the appeal by the nominator has been determined by the Federal Circuit Court.  The Tribunal gave the applicant until 26 April 2021 to provide any further documentation, including material relevant to its appeal.

18. The applicant did not provide any further material to the Tribunal following the hearing.  The Tribunal considers that he has been afforded a reasonable opportunity to do so, and the applicant has not sought an extension of time in which to provide any further documentation to the Tribunal.

19. The Tribunal acknowledges that the lack of a sponsor has been a difficult and distressing matter for the applicant.  The Tribunal also acknowledges that the applicant has claimed that the nominator has lodged an appeal against the Tribunal’s decision, affirming the delegate’s decision regarding the nomination application.  However, the applicant has not provided any information regarding this appeal, including the progress of the appeal and any hearing dates.  In these circumstances, the Tribunal considers that it is appropriate to proceed to making its decision in the matter, without seeking further information from the applicant about the appeal.

20. On the basis of the evidence before it, the Tribunal finds that the application for approval of the nominated position for the applicant  made by the nominator has not been approved.  As the applicant is not the subject of an approved nomination, he does not satisfy a requirement for the grant of the visa.

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

22. 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

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

    Amanda Mendes Da Costa
    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.