Singh (Migration)

[2021] AATA 2597

Singh (Migration) [2021] AATA 2597 (11 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gagandeep Singh
Mrs Harpreet Kaur

CASE NUMBER:  1833719

HOME AFFAIRS REFERENCE(S):          BCC2018/945785

MEMBER:Amanda Mendes Da Costa

DATE:11 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 11 June 2021 at 11.36am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cook – subject of an 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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 27 February 2018.

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 (Cth) (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 31 October 2018 on the basis that cl 457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination.

5. The applicants appeared before the Tribunal on 2 June 2021 to give evidence and present arguments.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by video, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal has taken into account that the applicant was prepared to participate in a telephone hearing and that as he was living in regional New South Wales, it was difficult for him to travel to Melbourne for the hearing.

7. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical, and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The Tribunal has considered the material in both the Departmental and Tribunal’s files.

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).

    Requirement for an approved nomination

12. 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.

13. On 6 May 2021 the Tribunal wrote to the applicants inviting them to comment on or respond (in writing) to information which the Tribunal considered would be the reason or part of the reason for affirming the decision under review.

14. This information was that the application for approval of the nominated position made by A Bhardwaj & R Rai (the nominator) was refused by a delegate of the Minister for Home Affairs. The nominator sought review of that decision with the Tribunal, but the application for review was affirmed by the Tribunal on 23 April 2021.

15. The Tribunal explained to the applicants that this information was relevant to their review because it was a requirement for the grant of the visa that the position specified for the applicant was the subject of an approved nomination.

16. The Tribunal further explained that if it relied on this information in making its decision, it may find that the position specified in the applicant’s visa application was not the subject of an approved nomination.  This would mean that the applicant did not satisfy a requirement for the grant of the visa and the Tribunal must affirm the decision under review.

17. The applicants responded to the Tribunal’s invitation in writing on 18 May 2021. In that response, the applicants explained that the first named applicant came to Australia to be involved in the hospitality industry.  He successfully completed a Certificate IV in Commercial Cookery in December 2015 and subsequently graduated with a Diploma of Hospitality in August 2019.  The first named applicant has worked at several restaurants in the nominated position and is currently working as a Cook in regional New South Wales for Eagle Stars Pty Ltd.

18. The first named applicant was unaware of the changes in the management of the nominator and other financial issues for the company until “very late in the overall scheme of things” and did not know prior to his employment being terminated that the business was failing. The applicants explained to the Tribunal that the refusal of their visa applications had caused them to experience financial, mental, and emotional instability.  Additionally, they were worried about the Covid-19 pandemic in India and were concerned that if their visa applications were not granted and they were forced to return to India, they would be at risk of contracting the illness.

19. In his oral evidence the first named applicant adopted the information contained in the applicants’ written response dated 18 May 2021.  He explained that he commenced working for the nominator in September 2017 as a Cook and ceased his employment in 2019 when the business ceased trading.  In November 2020 the first named applicant secured his current employment with Eagle Stars Pty Ltd, which had made a nomination application in respect of a position (Cook) for him.

20. Following the hearing, the applicant provided the Tribunal with a copy of an Acknowledgement of Nomination Application (dated 25 August 2020) provided by the Department to Eagle Stars Pty Ltd in respect of a nomination by that company for a position for the first named applicant as nominee.  This application is in the Temporary Skill Shortage (subclass 482) visa stream.

21. The Tribunal accepts that the first named applicant’s employment with the nominator ceased due to financial difficulties experienced by that business.  The Tribunal finds that he has obtained further employment with his current employer (Eagles Stars Pty Ltd), which has applied to sponsor the first named applicant for a subclass 482 visa.  The Tribunal also accepts that the applicants would experience difficulties in returning to India where they would be required to re-establish themselves both socially and financially.  The Tribunal finds that any arrangements for the applicants to return to India if their visas are not granted is a matter for the Department.

22. However, the Tribunal notes that nomination application by Eagles Stars Pty Ltd is for a subclass 482 visa whilst the subclass 457 visa and related business nomination program were closed to new applications on 18 March 2018.  Accordingly, the Tribunal finds that there  is no approved nomination of an occupation relating to the first named applicant by the nominator or any other standard business sponsor that has not ceased, as required by cl.457.223(4)(a).

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

24. The Tribunal finds that as the first named applicant does not satisfy the primary criteria for grant of a Temporary Business Entry (Class UC) visa, the second named applicant does not meet the criteria for a subclass 457 visa as a member of the family unit of a person who has satisfied the primary criteria.

25. 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

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

    Amanda Mendes Da Costa
    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.