Sawat (Migration)

[2018] AATA 614

Sawat (Migration) [2018] AATA 614 (1 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Arunee Sawat

CASE NUMBER:  1611964

DIBP REFERENCE(S):  BCC2015/3987608

MEMBER:Alison Mercer

DATE:1 March 2018

PLACE OF DECISION:  Melbourne

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 01 March 2018 at 12:45pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Requirement to be subject of an approved nomination – Nomination application previously refused by department – Refusal subsequently set aside by Tribunal – Applicant now subject of a valid nomination

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 457.223(4)(a)

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 applied for the visa on 21 December 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 visa on 18 July 2016 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination made by an employer who was an approved standard business sponsor. The delegate found that the applicant’s Australian employer, Turmeric Co Pty Ltd, had made an unsuccessful nomination application in relation to the applicant.

5. The Tribunal received a review application from the applicant on 3 August 2016.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Narong Sakulpichetratana, as her representative and authorised recipient for correspondence.

6. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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. At the time of the delegate’s decision, it is not disputed that the applicant was not the subject of an approved nomination by a standard business sponsor, as her employer, Turmeric Co Pty Ltd, did not have an approved nomination in respect of her.

10. From the Department’s records, the Tribunal finds that Turmeric Co Pty Ltd is an approved standard business sponsor until 3 January 2022.  It further finds that its nomination application in respect of the applicant for the position of Counsellor, not elsewhere classified (nec) (ANZSCO code 272199) was made on 17 March 2016 and refused by the Department on 18 July 2016. The employer sought review of that decision with this Tribunal on 3 August 2016.

11. On 21 February 2018, the Tribunal set aside the Department’s decision to refuse the nomination application made by Turmeric Co Pty Ltd in respect of the applicant, and substituted a decision to approve the nomination (see AAT – MRD decision 1611951 of 21 February 2018).

12. Accordingly, the Tribunal finds that the requirements of cl.457.223(4)(a) are now met.

13. 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

14. 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.

    Alison Mercer
    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.