PHAN (Migration)

[2021] AATA 3136

PHAN (Migration) [2021] AATA 3136 (23 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Kim Thanh PHAN

CASE NUMBER:  1828247

HOME AFFAIRS REFERENCE(S):          BCC2018/1186611

MEMBER:Alan McMurran

DATE:23 July 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl 457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 23 July 2021 at 2:27pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457–Tribunal set aside nomination decision – nomination approved –subject of an approved nomination –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 13 March 2018.

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.

4. 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.

5. The delegate refused to grant the visa on 18 September 2018 on the basis that cl 457.223(4)(a) was not met because the applicant was not the subject of a nomination which has been approved under Section 140GBA of the Act. The nomination by the partnership business of JJ and SP Chow,[1] trading as Inner Cravings Café, was refused by the Department on 8 August 2018, leaving the applicant without an approved nomination and meaning the visa application could not then succeed.

   [1] T case file 1823918

6. The applicant appeared before the Tribunal in a combined hearing with the review of the nomination refusal on 22 July 2021 to give evidence and present arguments. The Tribunal received oral evidence from the applicant and the business partner, Mrs SP Chow. The hearing was conducted virtually in accordance with the Tribunal’s pandemic protocols using MS Teams.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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

10. 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.

11. The available information shows that the partnership of JJ and SP Chow is an approved sponsor by the Department, continuing for the period from 7 August 2017 to 7 August 2022.

12. The information from the nomination case file[2] also shows that the occupation of Café or Restaurant Manager is the nominated occupation which relates to the position for which the applicant has sought the visa in this application.

    [2] ibid

13. On 23 July 2021, the Tribunal decided to set aside the nomination decision previously made by the Department and substituted a decision that the nomination is approved. The Tribunal finds therefore that the applicant now meets the requirement for a nomination of an occupation in relation to the applicant that has been approved under section 140GB of the Act.

14. The Tribunal further finds in accordance with the available information that the nomination of the occupation of Café or Restaurant Manager was made by the nominator as a current standard business sponsor, which in this instance is the partnership of JJ and SP Chow, and which nomination has not ceased.

15. For these reasons the requirements of cl 457.223(4)(a) are met.

    Conclusion

16. 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.

17. The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

    ·cl 457.223(4)(a) of Schedule 2 to the Regulations.

    Alan McMurran
    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.