Norani (Migration)

[2019] AATA 347

Norani (Migration) [2019] AATA 347 (31 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shah Ahmed Norani
Mrs Buangern Tawornphat
Master Aahil Muhammad
Miss Mariam Norani

CASE NUMBER:  1837724

DIBP REFERENCE(S):  BCC2018/760570

MEMBER:Mr S Norman

DATE:31 January 2019

PLACE OF DECISION:  Sydney

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 31 January 2019 at 2:48pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – second nomination application approved by delegate – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 57, 65, 140GB
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4), 457.321

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 Department delegate’s decision was lodged with the Tribunal.

2. The visa applicants applied for the visa on 15 February 2018. 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.

3. The delegate refused to grant the visas on 10 December 2018 on the basis that cl.457.223(4)(a) was not met because a nomination of an occupation in relation to the applicant had not been approved under s.140GB of the Act.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a). That stated:

   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; …

7. In the Department delegate’s decision, it was said the applicant had been advised their sponsor’s nomination application had been refused. The applicant was then invited to comment or withdraw their visa application in writing and was given 28 days to do so. At the date of the delegate’s decision, they noted that no response had been received. The delegate then found that based on the information before them, the applicant had not met cl.457.223(4)(a); and the delegate had then refused to grant the applicant a Subclass 457 Temporary Business Entry visa – based on having no met the primary criteria.

8. Next, the delegate considered cl.457.321 (member of the family unit). The delegate concluded that given none of the applicants met the primary criteria for the grant of the visa, then neither the applicant nor any of the secondary applicants, met the criteria for the grant of the visa on this basis. The delegate then refused to grant the applicant a Temporary Work (Skilled) (subclass 457) visa.

9. By migration agent submissions dated 21 December 2018,[1] the agent referred to a section 57 natural justice letter issued to an different agent who did not have authority to act; that if the correct agent had received the natural justice letter they would have responded within the prescribed time; that the decision to refuse the subclass 457 Visa in the Department letter of 10 December 2018 was issued to the incorrect email address; and that therefore that decision was invalid. However, the Tribunal is not satisfied the delegate’s decision is invalid for this reason and I am also satisfied the Tribunal has jurisdiction to review this case.

   [1] Tribunal – folio 18.

10. Next, the migration agent stated the “nomination application transaction reference EGOGEK9LKO identifying the nominee  - 457 Visa - main applicant had been approved and enclosed for your reference”.[2] The agent was referring to a “notification of approval of a nomination” relating to a Department decision dated 13 December 2018.[3] That Department decision was titled “notice of decision nomination approval notice for subclass 457 Visa”.[4] However, that ‘decision’ reference ‘EGOGEK9LKO’ differed from the decision reference in the Department decision to refuse the nomination approval application dated 10 December 2018 (being EGOHDSLWFU); and it was the earlier decision that was referred to by the Department delegate when refusing to grant the applicant’s subclass 457 Visa.

    [2] Tribunal – folio 18.

    [3] Tribunal – folio 15 (reverse side).

    [4] Tribunal – folio 14 (reverse side).

11. Subsequent enquires made by the Tribunal indicated that two nomination applications had been lodged with the Department. The first had been refused on 10 December 2018 (and merits review of that decision was sought). The second nomination application was approved by the Department on 13 December 2018. Both nomination applications appear to identify the same sponsor, the same visa applicant, and the same occupation (Supply and Distribution Manager). Further enquiries made by the Tribunal indicated that only one visa application had been lodged (and that application was refused by the Department due to the first nomination application being refused).

12. That being said, as the primary visa applicant is now the subject of an approved nomination application, the Tribunal is satisfied that the requirements of cl.457.223(4)(a) are met.

13. Given the findings above, 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

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.

    Mr S Norman
    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.