Ng (Migration)

[2022] AATA 1140

Ng (Migration) [2022] AATA 1140 (23 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chen Vun Ng
Ms Sin Yee Chin
Mr Jeff Tze Hien Ng
Mr Rex Tze Chern Ng

REPRESENTATIVE:  Mr Jensen Ma (MARN: 9802879)

CASE NUMBER:  1900864

HOME AFFAIRS REFERENCE(S):          BCC2018/929476

MEMBER:Amanda Mendes Da Costa

DATE:23 February 2022

PLACE OF DECISION:  Melbourne

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.

The Tribunal considers that the applications of the second, third and fourth named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

Statement made on 23 February 2022 at 9.14am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Computer Network and Systems Engineer – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 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 visa on 27 February 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 visas on 3 January 2019 on the basis that cl 457.223(4)(a)  was not met because the first named applicant (the applicant) was not the subject of an approved nomination.

5. On the basis of the material in both the Department’s and Tribunal’s files, and in accordance with s.360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour.  It was therefore unnecessary for the applicants to appear before it at a hearing to give oral evidence in relation to the decision under review.

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

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

   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 Tribunal notes that the nomination application for an occupation (Computer Network and Systems Engineer) relating to the applicant by his sponsor (The Trustee for The D Franciscus Trust & The Trustee for The Opt Trust) was refused by a delegate of the Minister.  The sponsor lodged an application for review in respect of this decision and on 22 February 2022 the Tribunal set aside the delegate’s decision and substituted a decision to approve the nomination.  Accordingly, the Tribunal is satisfied that the applicant is the subject of an approved nomination of an occupation by a standard business sponsor that has not ceased.

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

12. As the Tribunal has found that the applicant satisfies the primary criteria for the grant of a Subclass 186 visa, it considers that the applications of the second, third and fourth named applicants should be reconsidered as members of the family unit of a person who has satisfied the primary criteria for the grant of the visa.

13. Given the findings above, the appropriate course is to remit the applications for the visas to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

14. 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.

    The Tribunal considers that the applications of the second, third and fourth named applicants should be reconsidered as members of the family unit of a person who has met the primary criteria for the grant of 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.