Park (Migration)

[2020] AATA 5765

Park (Migration) [2020] AATA 5765 (27 November 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Yiseul Park
Mr Hyuntae Shin

CASE NUMBER:  1812721

DIBP REFERENCE(S):  BCC2017/1180538

MEMBER:Katie Malyon

DATE:27 November 2020

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 27 November 2020 at 5:44 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Contract Administrator – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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 28 March 2017.

2. The delegate made the decision to refuse the visa application on the basis that cl.457.223(4)(a) of Schedule 2 to the Migration Regulations 1994 (the Regulations) was not met because the primary applicant, Korean national Ms Yiseul Park, was not the subject of an approved nomination by approved standard business sponsor Maccas Cleaning Pty Ltd T/A Mammy’s Cleaning (the Company).

3. The Tribunal held a combined hearing of both the delegate’s refusal of the Company’s nomination (File No. 1810212) and refusal of the applicants’ related Subclass 457 visas on 19 October 2020.  Due to time constraints, the first hearing was adjourned and the Tribunal held further hearing with the Company later in the week on 22 October 2020.  The hearings were held by way of MS Teams videoconference in light of the COVID-19 pandemic. 

4. The Managing Director of the Company, Mr Hairyun Lee, appeared before the Tribunal to give evidence and present arguments on behalf of the Company.  Independent oral evidence was also received from Ms Park.  The hearings were conducted in the presence of an interpreter in the Korean and English languages.  The Tribunal notes Ms Park used the interpreter for most of the hearing.

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) of Schedule 2 to the Regulations.

   Requirement for an approved nomination

7. 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.

8. On 27 November 2020, the Tribunal approved the nomination made by the Company in respect of nominee Ms Yiseul Park the nominated occupation of Contract Administrator ANZSCO 511111. Accordingly, the requirements of cl.457.223(4)(a) of the Regulations are met.

9. By way of summary and as set out in Mr Lee’s letter of 13 September 2020 provided to the Tribunal, Ms Park’s duties as Contract Administrator will require her to:

   ·develop and implement contracts and Contract Management Plans by sourcing documents and establish contracts for the benefit of clients;

   ·administer contracts in accordance with approved Contract Management Plans and procedures and update contract details for organisation and efficiency;

   ·interpret and explain contract requirements, the terms and conditions to clients to inform them of the cleaning services provided as well as the terms of the contractual agreement;

   ·establish and maintain client relationships to identify and minimise risk, and maximise the value from the contract for both the client and the Company;

   ·proactively identify and manage contract risks to meet organisational obligations and achieve the planned outcomes of the contract; and,

   ·monitor work being carried out by staff and report variations to work orders if necessary.

10. Given the Tribunal’s finding that the requirements of cl.457.223(4)(a) of the Regulations are met, the appropriate course is to remit Ms Park’s application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

11. The second named applicant, Mr Hyuntae Shin, applied for his visa on the basis of being a member of the family unit of Ms Park.  Accordingly, his application will be determined by reference to the outcome of Ms Park’s application on remittal to the Department for reconsideration.

    DECISION

12. 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.

    Katie Malyon

    
    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.