Rai (Migration)

[2022] AATA 503

Rai (Migration) [2022] AATA 503 (2 February 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rakesh Chandra Rai

REPRESENTATIVE:  Mr Andrzej Kurowski (MARN: 0321519)

CASE NUMBER:  1903441

HOME AFFAIRS REFERENCE(S):          BCC2018/950741

MEMBER:Peter Emmerton

DATE:2 February 2022

PLACE OF DECISION:  Adelaide

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

·cl 457.233 of Schedule 2 to the Regulations

Statement made on 02 February 2022 at 12:57pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – ICT Support Technician – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB

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 made by a delegate of the Minister for Home Affairs on 5 February 2019 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 27 February 2018. At the time the 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).

3. The delegate refused to grant the visa on 5 February 2019 on the basis that cl.457.223(4)(a) was not met because the nomination was not approved.

4. The applicant was represented in relation to the review by their registered migration agent.

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).

7. In determining the applicants’ claims the Tribunal must first make findings of fact on material matters in dispute.  This may involve an assessment of credibility and in doing so, the Tribunal is aware of the need and importance of being sensitive to the circumstances and the difficulties applicants often face before the Tribunal in their particular circumstances.

8. The applicants rely on the evidence given before the Tribunal together with written submissions and supporting evidence provided to the Tribunal and previously to the department.

   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. An application for approval of a nomination of the occupation of ICT Support Technician nec: ANZSCO 313199, in relation to Mr Rakesh Chandra Rai was lodged by Nickal Pty Ltd on 26 February 2018.

11. On 31 December 2018 the application was refused.

12. On 2 February 2022, the Tribunal set the Department’s decision not to approve the nomination of the occupation aside and substituted a decision that the nomination is approved. In these circumstances the Tribunal is satisfied that a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act.

13. Therefore cl.457.223(4)(a)(i) is met.

14. The Department’s records show that Nickal Pty Ltd was approved as a Standard Business Sponsor and the most recent SBS was approved on 11 May 2018 for a 5 year period until 11 May 2023. The Nomination was approved by the Tribunal on 2 February 2022 at which time the SBS was current.

15. Therefore cl.457.223(4)(a)(ii) is met.

16. The Tribunal relies on its findings in the nomination application, which was approved on 2 February 2022, to find that the approval of the nomination has not ceased as provided for in regulation 2.75.

17. Therefore cl.457.223(4)(a)(iii) is met.

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

19. 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.

    DECISION

20. The Tribunal remits the application for 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 of Schedule 2 to the Regulations.

    Peter Emmerton
    Member