Sahu (Migration)

[2021] AATA 3707

Sahu (Migration) [2021] AATA 3707 (2 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Sahu

CASE NUMBER:  1824740

HOME AFFAIRS REFERENCE(S):          BCC2017/3834932

MEMBER:Susan Trotter

DATE:2 July 2021

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a 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(4)(a) of Schedule 2 to the Regulations.

Statement made on 02 July 2021 at 3:03pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Motor Mechanic (General) – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75; 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 8 August 2018 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 applied for the visa on 18 October 2017 seeking to work in the nominated occupation of Motor Mechanic (General) (ANZSCO code 321211) for Ankita Patel (the nominator).

3. 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 (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 8 August 2018 on the basis that cl.457.223(4)(a) was not met because the nomination application lodged by the nominator was refused by the Department on 1 June 2018 meaning that the applicant was not the subject of an approved nomination as required.

5. The application lodged an application with the Tribunal on 25 August 2018 seeking review of the delegate’s decision.

6. The applicant appeared before the Tribunal on 11 May 2021 to give evidence and present arguments.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(a) of Schedule 2 to the Regulations.

   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 (subparagraph (i)), that that the nomination was made by a person who was a standard business sponsor at the time the nomination was approved (subparagraph (ii)) and that the approval of the nomination had not ceased under r.2.75 (subparagraph (iii)).

10. The issues to be determined by the Tribunal are therefore:

    (a)  Is there a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act? And, if so,

    (b)  Was the nomination made by a person who was a standard business sponsor at the time the nomination was approved? And, if so,

    (c)   Has the approval of the nomination not ceased as provided for in r.2.75?

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issue 1 - Is there a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act?

11. The applicant was nominated by the nominator for the occupation of Motor Mechanic (General) (ANZSCO code 321211). The nomination application was refused by the Department of Immigration and consequently the visa application was refused.

12. On 2 July 2021, the Tribunal set aside the Department’s decision and approved the nomination[1].

    [1] Tribunal file no 1818193

13. Clause 457.223(4)(a)(i) is therefore now met.

    Issue 2 - Was the nomination was made by a person who was a standard business sponsor at the time the nomination was approved?

14. Records of the Department confirm that the nominator is an approved standard business sponsor for the period 8 May 2018 to 8 May 2023. The nomination was therefore made by a person who was a standard business sponsor at the time the nomination was approved on 2 July 2021.

15. Clause 457.223(4)(a)(ii) is therefore met.

    Issue 3 - Has the approval of the nomination not ceased as provided for in r.2.75?

16. Clause 457.223(4)(a)(iii) requires the Tribunal to consider whether the approval of the nomination has ceased as provided for in r.2.75(2) as in force immediately prior to 18 March 2018.

17. None of the specified occurrences, upon which a nomination ceases, listed in r.2.75(2) apply. The Tribunal is therefore satisfied that the nomination has not ceased. Clause 457.223(4)(a)(iii) is therefore met.

    Conclusion

18. As all the subparagraphs of cl.457.223(4)(a) have been met, the applicant meets cl.457.223(4)(a).

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 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.457.223(4)(a) of Schedule 2 to the Regulations.

    Susan Trotter
    Member