Nguyen (Migration)

[2020] AATA 6183

Nguyen (Migration) [2020] AATA 6183 (18 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Thu Huong Nguyen

CASE NUMBER:  1724016

DIBP REFERENCE(S):  BCC2017/1000826

MEMBER:George Hallwood

DATE:18 August 2020

PLACE OF DECISION:  Adelaide

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

Statement made on 18 August 2020 at 2:52pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – subject of approved position nomination – refusal of related nomination application affirmed – nominating business not a current business sponsor – applicant is principal of business – intention to apply for another subclass visa not relevant to this review – no substantive response to tribunal’s invitation to comment – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

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 Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 14 March 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 (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 25 September 2017 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 the decision was being decided.

5. The applicant appeared before the Tribunal by video link on 7 July 2020 to give evidence and present arguments. As the applicant was also the director and representative of the nominator in this matter and the hearing was combined with case number 1719592, the Tribunal also received oral evidence from Ms Nguyen in that capacity. Mr Hai Nguyen, the nominator’s accountant, also provided evidence via video link. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

6. The applicant was represented in relation to the review by her 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).

   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. In this matter the applicant is also the representative and principal of the nominator. The nominator’s review of the decision to refuse their nomination on 11 August 2017 was unsuccessful when the Tribunal affirmed the delegate’s decision on 22 July 2020.

11. On 23 July 2020 an invitation was sent by the Tribunal to the applicant for comment on or response to certain information which the Tribunal considered would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decision under review. In particular that the application for approval of the nominated position made by Huong's Food Service Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration, that the nominator sought a review of that decision, but that review was affirmed by the AAT.

12. The nominator’s nomination review failed before the Tribunal as they were found not to be current standard business sponsor.

13. The applicant was informed that if the Tribunal was to rely on this information in making its decision, the Tribunal may find that the position specified in the applicant’s visa application is not the subject of an approved nomination. This would mean that the applicant does not satisfy a requirement for the grant of the visa and that the Tribunal must affirm the decision that is under review. The applicant was provided until 6 August 2020 to provide written comments or response.

14. On 4 August 2020 the applicant noted that the Tribunal had not waited to see whether their nominator’s application for standard business sponsorship had been approved, and informed the Tribunal that their previous nominator was now considering submitting a further subclass 482 nomination for the same position. On the basis of this, the applicant sought a two month extension to respond to the invitation to comment “so that advertisements for a new nomination can be placed for the necessary 28 days; and other appropriate time limited departmental procedures be undertaken. This in an effort to lodge and then seek early approval of a new nomination.”

15. The Tribunal considered the request for an extension of time taking into account the circumstances of the applicant.

16. The application for review before the Tribunal is for a subclass 457 visa. In this case the nomination was refused and the nomination refusal has been affirmed by the Tribunal. Subclass 457 visa’s were abolished from 18 March 2018. While theoretically possible, the Tribunal is satisfied that there is, in reality, little opportunity for a sponsorship to still be available that aligns with the occupation for which the applicant in this case could transfer their application to. A subclass 482 visa application and nomination are not the subject of the review application before the Tribunal.

17. The Tribunal, on the basis of allowing further time in relation to commenting on or responding to the s359A invitation provided, in correspondence with the applicant dated 7 August 2020, an extension of time until 13 August 2020. The Tribunal in the same correspondence provided its reasons for not acceding to the request for a two-month extension of time, in particular that the reasons for the request do not go to the merit of the subclass 457 visa application before the Tribunal.

18. No further response was received from the applicant by 13 August 2020.

19. For this reason it is not in dispute that the applicant is not the subject of an approved nomination of an occupation by a standard business sponsor that has not ceased.

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

    CONCLUDING PARAGRAPH

21. 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

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

    George Hallwood
    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.