RIZAN (Migration)

[2019] AATA 173

RIZAN (Migration) [2019] AATA 173 (23 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Fathima Ayesha Rizan
Mr Mohamed Rizan Abdul Razak
Master Raquib Abdul Razak Mohamed Rizan

CASE NUMBER:  1703499

DIBP REFERENCE(S):  BCC2015/2827718

MEMBER:K. Chapman

DATE:23 January 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 23 January 2019 at 12:43pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – first named applicant – nomination approval – Tribunal affirms nomination refusal – secondary applicants – unable to meet requirements – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2 cl 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 28 September 2015, including the second and third named applicants in that application. The first named applicant is Ms Fathima Ayesha Rizan. The second and third named applicants are her family members and secondary visa applicants. All of the applicants are Sri Lankan nationals.  

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 28 February 2017 on the basis that cl.457.223(4)(a) was not met because the first named applicant was not the subject of an approved nomination as required. On 28 February 2017, the first named applicant (hereafter ‘the applicant’) applied to the Tribunal for review of the visa refusal decision, providing a copy of that decision with her application for review.

5. The applicant appeared before the Tribunal on 23 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the second named applicant, Mr Mohamed Rizan Abdul Razak, who is her husband.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the first named applicant meets the requirements of cl.457.223(4)(a).

   Requirement for an approved nomination

8. 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.

9. During the review hearing the applicant was invited to provide evidence in support of her application for review. In summary, the applicant advised that she is genuinely performing the role of a Customer Service Manager with Estate Agents Pty Ltd (‘the nominator’) and contended that she meets the requirements for the Subclass 457 visa.

10. The applicant submitted a variety of documents at the review hearing including educational, employment and taxation records. She also submitted media articles, including one concerning violence in Sri Lanka. The aforementioned material has been duly considered by the Tribunal.

11. The second named applicant gave oral evidence which may be summarised as follows. He wishes to stay in Australia as his son is doing well in school and can only speak in the English language. He also indicated that he did not wish to return to Sri Lanka as there is some violence in that country. The second named applicant advised that the family had settled well in Australia and they wished to remain in this country.

12. When asked by the Tribunal if they required protection in Australia, both the applicant and the second named applicant specifically advised that they did not.

13. Following the review hearing, on 8 January 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act inviting her to provide comments or response to the following information:

    a.“The application for approval of the nominated position made by Estate Agents Pty Ltd (the nominator) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the AAT. This means that the nominator’s application for the nominated position has not been approved.”

14. No response to the s.359A invitation has been received by the Tribunal at the time of this decision.

    CONCLUSION

15. The Tribunal notes that the nomination of the applicant for the position of Customer Service Manager by Estate Agents Pty Ltd (‘the nominator’) has not been approved. Accordingly, the Tribunal finds that there is not an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Therefore, the requirements of cl.457.223(4)(a) are not met.

16. 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.

17. In relation to the second and third named applicants, the Tribunal notes that cl.457.321 requires that secondary visa applicants are members of the family unit of a person (the primary visa applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. Given that the applicant has not met the requirements for the grant of a Subclass 457 visa, and is not the holder of a Subclass 457 visa, it follows that the second and named applicants do not satisfy the requirements of cl.457.321. The Tribunal so finds.

    DECISION

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

    K. Chapman
    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.