Phung (Migration)

[2023] AATA 478

Phung (Migration) [2023] AATA 478 (9 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thu Ha Phung
Mr Duc Tam Le

REPRESENTATIVE:  Ms Sarah Leora Frankel

CASE NUMBER:  1834498

HOME AFFAIRS REFERENCE(S):          BCC2017/4488803

MEMBER:R. Skaros

DATE:9 March 2023

PLACE OF DECISION:  Sydney

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

Statement made on 09 March 2023 at 10:58am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – occupation of Dental Technician – no approved nomination – new nomination lodged for different subclass – nomination of an applicant to an occupation must be for a particular visa – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 140GB
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994, Schedule 2, cl 457.223; r 2.72

CASES

Jason Spencer James & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor 

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 27 November 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 10 November 2018 on the basis that cl 457.223(4)(a) was not met because the nomination in respect of the primary visa applicant (the applicant) was not approved.

5. The applicants appeared before the Tribunal (differently constituted) on 19 April 2021 to give evidence and present arguments. A request was made by the applicants’ representative for the Tribunal to delay making its decision pending the outcome an application for judicial review before the Federal Court of Australia (FCA). The previously constituted Tribunal agreed to the request. The appeal before the FCA was finalised on 12 October 2022.

6. The applicant appeared before the present Tribunal on 13 December 2022.  She provided details of her employment and immigration history in Australia, including details of previous visas she held. The applicant conceded that she would be unable to succeed in the review but requested the Tribunal delay making its decision as she intends to make an offshore application for a Subclass 482 visa but required further time to complete work experience requirements.

7. The Tribunal considered the request but declined to delay the making of its decision for an extended period given it would not result in a favourable outcome of the present matter. The Tribunal did however agree not to finalise the review until after January 2023.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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 applicant was nominated by Perfect Smiles Orthodontics Pty Ltd in the occupation of Dental Technician. That nomination was refused by the Department. An application for review of the nomination decision was lodged with the Tribunal, however, that application was subsequently withdrawn.

12. In response to an invitation to comment on the withdrawal of the review by Perfect Smiles Orthodontics Pty Ltd, the applicant’s representative provided evidence of the Department’s approval of a nomination in respect of the applicant for a Subclass 482 visa dated 19 January 2021. The applicant sought to rely on that nomination to satisfy the requirements in cl.457.223(4)(a).

13. As noted above, the Tribunal differently constituted agreed to delay the making of its decision pending the outcome of the FCA matter of Jason Spencer James & Ors v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs & Anor (James). One of the issues determined by the FCA in James, relevant to the present matter, was whether a nomination made under s.140GB of the Act on or after 18 March 2018, when the Subclass 457 visa was repealed and replaced with Subclass 482 visa by the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (Cth) (the Amending Regulations), could be relied upon to satisfy the requirements in cl.457.223(4)(a). In dismissing the appeal, the Court considered that, under s.140GB(1)(a), a nomination of an applicant or a proposed applicant in relation to an occupation must be for a particular visa of a prescribed kind. Accordingly, an approved nomination of an applicant under a specific visa subclass must correspond to the same visa subclass that the applicant has applied for.

14. In this case, the approved nomination in respect of the applicant for the occupation of Dental Technician, which was applied for after the Amending Regulations came into effect, was for a Subclass 482 visa. Consequently, the applicant is unable to rely on that nomination satisfy the requirements in cl. 457.223(4)(a) for the purposes of the Subclass 457 visa.

15. For the above reasons, the Tribunal finds that the applicant is not the subject of an approved nomination under s.140GB of the Act that is capable of supporting her application for a Subclass 457 visa. It follows that the requirements of cl 457.223(4)(a) are not met.  

16. 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.

17. The secondary applicant applied for the visa on the basis of being a member of the family unit of the first named applicant. As the first named applicant does not satisfy one of the requirements for the grant of the Subclass 457 visa, it follows that the decision in relation to the secondary applicant must also be affirmed.

18. During the processing of the review, the applicants informed the Tribunal about the birth of their child. The Department does not appear to have made a subsequent decision in respect of the child, consequently, the child is unable to be included in this application for review.

    DECISION

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

    R. Skaros
    Senior 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.