Sajid (Migration)

[2019] AATA 4485

Sajid (Migration) [2019] AATA 4485 (29 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hafiz Usman Sajid
Mrs Maida Usman

CASE NUMBER:  1517909

DIBP REFERENCE(S):  BCC2015/2258503

MEMBER:Danielle Galvin

DATE:29 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 29 July 2019 at 1:06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – Customer Service Manager – nomination refused – nominator withdrew review application – no approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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 6 August 2015.

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 7 December 2015 on the basis that cl.457.223(4)(a) was not met because, at the time of the making of the delegate’s decision, there was no approved nomination of the occupation in association with the visa application in place. Therefore the applicant did not meet the criteria for the grant of a Temporary Work (skilled)(subclass 457) visa.ie the primary applicant is not the subject of an approved nomination. Further, the applicant did not meet the secondary criteria as they are not a member of the family unit of a person who holds a 457 visa.

5. On 8 March 2019 the Tribunal wrote to the applicants advising them that the application for approval for the nominator was refused by the delegate of the Minister for Immigration and, having sought a review of the decision, the nominator then withdrew the review application on 14 December 2018. The result was that the nomination had not been approved. The applicants’ comments were sought by 22 March 2019.

6. The applicants responded in an undated and unsigned letter. In that letter the applicants stated that the owner of the nominator , David Burns, became frustrated with the nomination process and abandoned the process. The applicants stated that consequently the primary applicant lost his position and they sought time for him to find an alternative job and lodge a fresh application.

7. The hearing was originally listed for hearing on the 1 July 2019. However, the primary applicant was unwell and requested an adjournment and the hearing was rescheduled for 29 July 2019.

8. The applicants appeared before the Tribunal on 29 July 2019 to give evidence and present arguments. The Tribunal heard oral evidence from the primary applicant.

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a). To succeed in the application for a Temporary Business Entry (ClassUC) Temporary Work (Skilled)(Subclass 457) visa it is a requirement to meet this clause..

    Requirement for an approved nomination

12. Clause 457.223(4)(a) requires that; (i) there is an approved nomination of an occupation in place, pursuant to section 140GB of the Act, (ii) that nomination was made by a person who is a standard business sponsor at the time the nomination was approved and,(iii) the approval of the nomination has not ceased under r.2.75 of the regulations.

13. The prospective employer, WELLNSPRING GROUP PTY LTD (7 Eleven) did not have an approved nomination for the applicant in the role of Customer Service Manager. Therefore, at the time of the decision, an approved nomination was not in place.

14. The primary applicant does not have an approved nomination in place and therefore the Tribunal cannot be satisfied that the requirements of cl.457.223(4)(a) have been met. Therefore the primary applicant does not satisfy the primary criteria for the grant of the visa. There is no requirement to assess the application against any other criteria as all the criteria must be met and a failure to meet one of the criteria is fatal to the application.

15. For these reasons the requirements of cl.457.223(4)(a) are not met.

16. The secondary applicant is a member of the family unit of the primary applicant. However, because the primary applicant has not been successful in his application the secondary applicant is not a member of the family unit of a person who, having met all the primary criteria, is the holder of a Subclass 457 visa. Accordingly the secondary applicant fails to satisfy the requirements of cl.457.321 and their application also fails.

17. Consequently the Department’s decision under review must be affirmed.

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 visa applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Danielle Galvin
    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.