Shubhadip Pty Ltd (Migration)

[2018] AATA 5152

Shubhadip Pty Ltd (Migration) [2018] AATA 5152 (14 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Shubhadip Pty Ltd

VISA APPLICANTS:  Mr Prem Sapkota
Mrs Sarita Bhusal

CASE NUMBER:  1804411

DIBP REFERENCE(S):  BCC2016/2081487 BCC2016/3081487

MEMBER:Alan McMurran

DATE:14 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 14 December 2018 at 12:21pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – subclass 457 – not the subject of approved nomination – cook – refusal not the subject of review – no response to tribunal communication – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 140GB

Migration Regulations 1994, Schedule 2, cl 457.223 (4)

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 16 September 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).

4. 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.

5. The delegate refused to grant the visas on 5 February 2018 on the basis that cl.457.223 (4) (a) was not met because the applicants were not the subject of an approved nomination by a standard business sponsor and which had not ceased.

6. The review applicant was invited to appear before the Tribunal on 13 December 2018 in a multi-application hearing list, to give evidence and present arguments. The review applicant did not appear on that occasion and the Tribunal has elected to proceed to finalise the matter on the information before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the visa applicants by a standard business sponsor that has not ceased.

10. The first named applicant is a 33-year-old Nepalese citizen and the second named applicant is his spouse, a 28-year-old citizen of India. The first named applicant was nominated by the review applicant for the occupation of cook.

11. In considering this review, the Tribunal has available to it the Tribunal’s file and the Department file[1]. Having reviewed the information in those files the Tribunal finds as follows.

    [1] BCC2016/3081487

12. The Department sent a letter to the visa applicants to an address in Nepal on 4 November 2016, requesting more information in relation to the visa applications. The visa applicants were asked to respond within 28 days. The Department sent a further letter to the visa applicants to the same address in Nepal on 27 July 2017 with an invitation to comment on information. The letter informed the visa applicants that the review applicant did not have an approved nomination for them as at that time. They were advised the visa application was therefore unlikely to be successful.

13. A third letter was sent by the Department on 4 October 2017, again to the address in Nepal. This letter invited the visa applicants to comment, and informed the visa applicants that in the absence of an approved nomination they could provide comment to the Department on their intentions as regards an approved nomination, or withdraw the application, or provide any other comment they wished to make concerning the adverse information that there was no approved nomination for them at that time.

14. The visa applicants had provided evidence of the menu from the Heritage Restaurant in Nepal where the first-named visa applicant worked, and relied upon the supporting documents with the application which included a copy of the student record of results for the first-named applicant for his Certificate IV in Commercial Cookery from Management Inst of Australia. There was also a signed employment agreement for an annual salary of $54,000 per annum between the first named visa applicant and the review applicant, dated 15 August 2016. The letter of employment was in respect of a full-time position as a cook, working for the review applicant in Australia at its premises in New South Wales.

15. Following the decision and lodgement of this review application on 20 February 2018, the Tribunal wrote to the review applicants on 21 February 2018 acknowledging receipt of the application and inviting them to provide written material or arguments for consideration by the Tribunal in the review.

16. A copy of the Tribunal’s letter and acknowledgement of receipt of the application was sent to a representative than acting for the review applicant.

17. The Department’s record shows that the nomination application by the review applicant was refused on 4 October 2017. There is no information that the nomination refusal was the subject of a further review, or that a further nomination application in favour of the visa applicants has been made by the review applicant.

18. On 12 November 2018, the Tribunal invited the review applicant to attend a hearing on 13 December 2018 and attached the Tribunal’s standard information about hearings, and which invites the applicants to consider whether they need more time to present information and make that request for an extension of time supported by reasons.

19. The invitation was sent to the applicant’s nominated representative. A check of the Tribunal’s file reveals there was no response to the Tribunal’s correspondence and the applicant did not appear at the review hearing or seek an extension.

20. The Tribunal has had careful regard to the information already on the Department’s file and the Tribunal’s file and finds that there is no nomination of an occupation in relation to the visa applicants which has been approved under section 140GB of the Act, no nomination by a standard business sponsor either approved or outstanding in respect of the visa applicants and no approved nomination which has not ceased.

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. 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

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

    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.