Shrestha (Migration)

[2020] AATA 505

Shrestha (Migration) [2020] AATA 505 (24 February 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Milan Shrestha

CASE NUMBER:  1714017

DIBP REFERENCE(S):  BCC2016/2573199

MEMBER:Alan McMurran

DATE:24 February 2020

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 24 February 2020 at 2:31pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Accountant (General) – subject of an approved nomination – nomination refused – 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 lodged 30 June 2017 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 3 August 2016.

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.

4. 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.

5. The delegate refused to grant the visa on 13 June 2017 on the basis that cl.457.223 (4) (a) was not met because the applicant is not the subject of an approved nomination.

6. The applicant appeared before the Tribunal on 23 January 2020 in a combined hearing with a review of the nomination application, to give evidence and present arguments. A director of the nominator appeared together with the applicant, and both persons gave evidence.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Nigel Dobbie. The representative also attended the Tribunal hearing and made submissions.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223 (4)(a),and in particular, whether the applicant is the subject of a nomination which has been approved.

   Background

10. The Tribunal explained to the applicant at the hearing about the Tribunal process and the fact that if the nomination could not be approved, then the visa application would also fail.

11. The applicant was asked if there was any further or additional information that he sought to provide and if he understood he was entitled to seek an adjournment. The applicant indicated he understood the process and did not require an adjournment and did not object to the applications being heard together.

12. The nomination application for review[1] was dealt with first. The Tribunal had available for review its case files in relation to this application by the nominee and the Tribunal case file for the nomination. It also had available the Department’s corresponding files in respect of those applications and the decisions, which had been provided by the representative.

    [1] Tribunal case file 1803628

13. The applicant was seeking approval for a visa in the nominated occupation of Accountant (General) ANZSCO 221111.

14. The nominee gave evidence which is summarised in the Tribunal decision made 29 January 2020, and not repeated here. On 29 January 2020, the Tribunal made a decision affirming the Department’s decision not to approve the nomination.

15. On 30 January 2020, the Tribunal sent a natural justice letter to the applicant. The letter informed the applicant of the following particulars, namely, that the Tribunal had affirmed the application for review by the nominator, and that as a result, there is no current nomination approved or under review and pending.

16. The applicant was invited to comment or respond to that information by 13 February 2020. The applicant was also invited to apply for an extension of time, with reasons, if that was required. The applicant was also informed that if no comments or response was received within the period allowed, the Tribunal may make a decision on the review without taking any further action to obtain the applicant’s views on the information.

17. The Tribunal did not receive any response to its letter, other than a request on 30 January 2020 to provide the applicant with a copy of the decision in the nomination review application, case file 1803628.

    Requirement for an approved nomination

18. 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.

19. The Tribunal has had regard to the information obtained at hearing in relation to this matter and the subsequent Tribunal decision in respect of the nomination review, and the decision to affirm the Department’s decision not to approve the nomination.

20. The Tribunal finds that the applicant is not the subject of a nomination of an occupation in relation to the applicant that has been approved under section 140 GB of the Act.

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

22. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met.

23. 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

24. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Alan McMurran
    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.