Prickler (Migration)

[2018] AATA 3105

Prickler (Migration) [2018] AATA 3105 (16 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Julie Prickler
Mr Raymond Charles Henry Prickler
Mr George Alan Prickler

CASE NUMBER:  1618986

DIBP REFERENCE(S):  BCC2016/1938952

MEMBER:Alan McMurran

DATE:16 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 July 2018 at 1:36pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsor – Nominated position – Fitness Centre Manager – Nomination affirmed by the Tribunal – No current nomination – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
Migration Regulations 1994 (Cth), Schedule 2 cls 457.223, 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).

2. The visa applicants applied for the visa on 3 June 2016.

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 (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 24 October 2016 on the basis that cl.457.223 (4)(a) was not met because the applicant was not the subject of an approved nomination. The application for review was lodged with the Tribunal on 11 November 2016.[1]

   [1] T File f 16

5. The applicant was nominated for the position of Fitness Centre Manager (ANZSCO 149112) by the sponsor, Julie’s Zumba Fitness Pty Ltd.

6. Regulation 457.223(4)(a) requires that each of the following applies to the visa application:

   i.there is a nomination of an occupation in relation to the applicant which has been approved under section 140 GB of the Act;

   ii.the nomination was made by a person who was a standard business sponsor when the nomination was approved;

   iii.the approval of the nomination has not ceased;

7. The applicant must satisfy all of the criteria for the application to be approved.

8. The Tribunal has available to it for this review the Tribunal’s file[2], the Department file BCC2016/1938952 and the Tribunal related file for the nomination[3] (“the information”)

   [2] 1618986

   [3] 1616974

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(a). In order to do so, the review applicant must satisfy the requirements in the regulation as set out above.

    Requirement for an approved nomination

11. 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.

12. On 1 June 2018, in Tribunal case file 1616974, the Tribunal affirmed a decision by the Department not to approve the nomination on behalf of an approved sponsor, Julie’s Zumba Fitness Pty Ltd. The nomination was for the applicant to be employed in the role of Fitness Centre Manager by the nominator.

13. On 29 June 2018, the Tribunal wrote to the visa applicants under section 359A of the Act inviting them to provide information relevant to the review. The Tribunal provided particulars that the decision to refuse the nomination by the sponsor, Julie’s Zumba Fitness Pty Ltd, had been affirmed by the Tribunal and that the information before the Tribunal was to the effect there was no current approved nomination. The Tribunal requested a response by 13 July 2018. The applicants were informed that if no comments or response was received within the period allowed, they will lose any entitlement they might otherwise have to appear before the Tribunal give to evidence and present arguments.

14. The Tribunal did not receive any response to the Tribunal’s letter.

15. The Tribunal has had regard to the information and the decision made by the Tribunal on 1 June 2018 to refuse the nomination application by the approved sponsor. The Tribunal finds as a result that the applicant is not the subject of a nomination of an occupation which has been approved under section 140GB of the Act.

16. For these reasons the requirements of cl. 457. 223 (4) (a) are not met.

    Secondary Applicants

17. Cl. 457. 321 requires that the secondary applicants are members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 Visa.

18. The Tribunal has found that the primary applicant has not met the requirements for approval of an application for a Subclass 457 visa, and is not the holder of a Subclass 457 visa.

19. The Tribunal finds that the secondary applicants are therefore not members of the family unit of a person (the primary applicant) who is the holder of a Subclass 457 visa.

20. The Tribunal finds the criteria in cl. 457.321 are not met.

21. 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.

    DECISION

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

    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.