Sadek (Migration)

[2021] AATA 5678

Sadek (Migration) [2021] AATA 5678 (29 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ahmad Sadek
Ms Nivine Cheikh
Ms Serena Sadek

CASE NUMBER:  1817415

DIBP REFERENCE(S):  BCC2017/1081975

MEMBER:Marten Kennedy

DATE:29 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 29 January 2021 at 3:52pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– no approved nomination of an occupation in respect of the applicant – decision under review affirmed  

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223

STATEMENT OF DECISION AND REASONS

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 20 March 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 (the Regulations).

4. 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. 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.

5. The delegate refused to grant the visas on 5 June 2018 on the basis that cl.457.223(4)(a) was not satisfied.  This was a consequence of the Department’s corresponding decision to refuse to approve the nomination of a position proposed by the Mr Sadek’s sponsor, VB Built Pty Ltd.

6. I have reviewed the decision  to refuse to approve the nomination proposed by VB Built Pty Ltd in matter 1804542 VB Built Pty Ltd.  I decided to affirm that decision for the reasons I published in that matter.

7. As I explained to Mr Sadek in the combined hearing of that matter and this matter, the issue in this review was whether he had an approved nomination in place, and inevitably this would turn on the outcome in matter 1804542.

8. After the decision in 1804542 VB Built Pty Ltd was published, I wrote to Mr Sadek using the procedure provided for in section 359A of the Act to inform him of this adverse information and to invite his comment or response.

9. I have received a response on behalf of Mr Sadek that correctly acknowledges that the Tribunal cannot set aside the decision under review given the Tribunal’s decision not to set aside the associated nomination approval.

   CONSIDERATION

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) which requires that that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

11. As I have affirmed the decision not to approve the associated nomination application, I find that there is not an approved nomination of an occupation relating to the primary visa applicant.

12. For this reason the requirements of cl.457.223(4)(a) are not met, and it follows that the requirements of cl.457.223(4) are not 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. As cl.457.223 is an essential criterion for the grant of the visa in Mr Sadek’s circumstances, the visa must be refused.

13. The remaining visa applicants rely on their status as members of Mr Sadek’s family unit to satisfy the secondary criteria for the grant of visas.  As Mr Sadek must be refused the visa, the remaining visa applicant’s will not satisfy cl.457.321 which requires they be members of the family unit of a person who holds the visa having satisfied the primary criteria.

    DECISION

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

    Marten Kennedy
    Member