Ramanjeet Singh (Migration)

[2020] AATA 6109

Ramanjeet Singh (Migration) [2020] AATA 6109 (7 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ramanjeet Singh

CASE NUMBER:  1723959

DIBP REFERENCE(S):  BCC2016/2955177

MEMBER:Susan Trotter

DATE:7 September 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 07 September 2020 at 6:33pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – no approved nomination – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
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 Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant, a now 39-year-old citizen of India, applied for the visa on 6 September 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 visa on 20 September 2017 on the basis that cl.457.223(4)(a) of Schedule 2 to the Regulations was not met as the applicant was not the subject of an approved nomination as required.

5. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 October 2017 and provided the Tribunal with a copy of the delegate’s decision.

6. On 18 August 2020, the Tribunal wrote to the applicant, care of his representative, inviting him to attend a hearing before the Tribunal on 8 September 2020.

7. On 7 September 2020, the applicant’s representative responded to the Tribunal’s hearing invitation advising that the applicant had consented to the Tribunal making a decision based on the fact that the applicant would not be participated in the scheduled hearing, as confirmed in the Hearing Response returned to the Tribunal signed by the applicant.

8. The applicant has therefore consented to the Tribunal proceeding to make a decision on the review without appearing before it: subparagraph 360(2)(b) of the Act.

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 applicant meets the requirements of cl.457.223(4)(a).

    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 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants and that the Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications such that a new application for approval of a nomination in respect of a Subclass 457 visa applicant cannot now be made.

13. As canvassed by the delegate in its decision, provided by the applicant to the Tribunal, nomination applications by 1 Milestone Pty Ltd and Abhi’s Creation Pty Ltd in relation to the applicant were not approved by the Department.

14. No further evidence has been provided of there being an approved nomination or of there being a further relevant nomination application.

15. There is no evidence before the Tribunal of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased, and the Tribunal finds accordingly.

16. Further, it is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.

17. In these circumstances, the requirements of cl.457.223(4)(a) are not met and cannot now be met.

18. 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 applicant would be able to satisfy the specific criteria for those streams. It follows that the Tribunal must affirm the decision to refuse to grant the visa to the applicant.

    DECISION

19. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Susan Trotter
    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.