Serwecinski (Migration)

[2018] AATA 1874

Serwecinski (Migration) [2018] AATA 1874 (9 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Krzysztof Junior Serwecinski

CASE NUMBER:  1515413

DIBP REFERENCE(S):  BCC2015/1530552

MEMBER:Alison Mercer

DATE:9 May 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 09 May 2018 at 12:17pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Approval of Nomination – Business sponsor approved – Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, r 2.72, Schedule 2 l 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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 May 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 23 October 2015 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of an approved nomination by an approved standard business sponsor. The delegate noted that the applicant’s prospective employer, S L Insulation Pty Ltd, did not have an approved nomination in relation to him.

5. The Tribunal received a review application from the applicant on 12 November 2015. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Suzanne Farrelly, as his 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. The Tribunal is satisfied that at the time of the delegate’s decision on 23 October 2015, the applicant’s nominating employer, S L Insulation Pty Ltd, was an approved standard business sponsor, but its nomination of the applicant as a Fibrous Plasterer under r.2.72 had been refused by the Department.

10. Following the nomination refusal, S L Insulation Pty Ltd lodged an application for review with this Tribunal in relation to that decision on 8 January 2016. On 19 April 2018, the Tribunal (as presently constituted) set aside the Department’s decision to refuse to approve the nomination made by S L Insulation Pty Ltd and substituted a decision to approve the nomination (see AAT-MRD decision 1600261 of 19 April 2018).

11. Accordingly, the Tribunal is satisfied (from the Department’s records) that S L Insulation Pty Ltd is an approved standard business sponsor until 13 October 2020, and now has an approved nomination in respect of the applicant.

12. For these reasons, 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.