Pawandeep Kaur (Migration)

[2022] AATA 5204

Pawandeep Kaur (Migration) [2022] AATA 5204 (8 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs  Pawandeep Kaur
Mr Sarbpreet Singh Sandhu
Mr Surkhaab Singh Sandhu

REPRESENTATIVE:  Mr Mandeep Singh Sidhu (MARN: 0744076)

CASE NUMBER:  1834209

HOME AFFAIRS REFERENCE(S):          BCC2017/3612252

MEMBER:Jade Murphy

DATE:8 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 8 April 2022 at 12:11pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – related nomination application refused and affirmed – legislative changes mean that new nomination will not fulfil requirements – applicant seeking employer for another subclass visa – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 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 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 3 October 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 (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 November 2018 on the basis that cl 457.223(4)(a) was not met because the business nomination application lodged by the first named applicant’s prospective employer, Australian Institute of Technical Training Pty Ltd, was not approved by the Department.

5. The applicants appeared before the Tribunal on 8 April 2022, by telephone, to give evidence and present arguments.

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

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. On 2 March 2022 the Tribunal wrote to you and invited you to comment on or respond to certain information which it considered would, subject to your comments, or response, be the reason, or a part of the reason, for affirming the decision under review. In particular the application for approval of the nominated position made by Australian Institute of Technical Training Pty Ltd (the nominator) was refused by a delegate of the Minister of Home Affairs. The nominator sought a review of that decision, but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

11. On 17 March 2022 the Tribunal received a response from the applicants which included an explanation of the circumstances surrounding the employer nomination and visa application refusal, and requested the Tribunal grant an extension of time for the applicant to find a new employer.

12. At hearing, the Tribunal told the applicants it was not minded to grant an extension of time to find a new employer as a new nomination will not operate to fulfill the nomination requirements for this Subclass 457 application. The Tribunal explained to the applicants the changes to the legislative scheme brought in from 18 March 2018, to remove this subclass of visa, which mean that any nomination with respect to this visa application needed to have been applied for prior to that date. The applicants confirmed that they understood these changes. The Tribunal explained that in these circumstances it considers it futile with respect to this visa application, to grant further time to find a new sponsor when it will have no bearing on the applicant’s ability to meet the nomination requirements for the grant of this visa. The applicants told the Tribunal that they are seeking an employer for a Subclass 494 visa. The Tribunal noted the applicant’s submission in this regard but told the applicants it remained that there is no evidence to demonstrate that the applicants can meet the nomination requirement for the grant of this visa.

13. As there is no evidence to demonstrate that there is an approved nomination in place, nor that one has not been lodged with respect to this visa application before 18 March 2018, the Tribunal finds that the nomination requirement in cl.457.223(4)(a) are not met.

14. 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.

15. As the first named applicant does not meet the criteria in cl.457.223(4)(a) for the grant of this visa, it follows that the secondary applicants do not meet cl.457.321 for the grant of this visa.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Jade Murphy
    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.