Nguyen (Migration)

[2019] AATA 2027

Nguyen (Migration) [2019] AATA 2027 (2 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Huyen Tram Nguyen
Mr Gia Huan Dinh

CASE NUMBER:  1811962

DIBP REFERENCE(S):  BCC2017/2976913

MEMBER:Karen Synon

DATE:2 May 2019

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.

Statement made on 02 May 2019 at 3:26pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Accountant (General) – 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

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).  The visa applicants applied for the visa on 18 August 2017.

2. The delegate refused to grant the visas on 20 April 2018 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.

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

4. On 2 May 2019 the Tribunal set aside the decision of the department to refuse the nomination for the occupation of ‘Accountant (General)’ lodged by CT Vineyards Pty Ltd in respect of the applicant, and substituted a decision that the nomination is approved.

5. Therefore, at the time of this decision, there is an approved nomination in respect of the applicant and for this reason the requirements of cl.457.223(4)(a) are met.

6. Given this finding, 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

7. 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.

   Karen Synon
   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.