Singh (Migration)

[2021] AATA 1750

Singh (Migration) [2021] AATA 1750 (4 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Satnam Singh
Mrs Jaspreet Kaur
Mr Shahbaaz Singh

CASE NUMBER:  1829171

HOME AFFAIRS REFERENCE(S):          BCC2017/2247923

MEMBER:Amanda Mendes Da Costa

DATE:4 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 4 June 2021 at 10.46am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – 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 26 June 2017.

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

5. The applicants appeared before the Tribunal on 27 May 2021 to give evidence and present arguments.

6. The Tribunal has considered the material in both the Departmental and Tribunal files.

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 applicant by a standard business sponsor that has not ceased.

10. In their decision, the delegate noted that the nomination application lodged by the applicant’s prospective employer Batth & Co Pty Ltd  (the nominator) had not been approved and therefore the applicant was not the subject of an approved nomination.

11. Pursuant to s.359AA of the Act, the Tribunal invited the first named applicant to comment on or respond to information that would be the reason or part of the reason to affirm the decision under review.  This information was that on 23 April 2021 the Tribunal affirmed the primary decision made by the Department not to approved the nomination application by Batth & Co Pty Ltd (the nominator) in respect of a position associated with the first named applicant in this review application. 

12. The first named applicant acknowledged that he was aware that the review application by the nominator had not been granted.  He explained that the nominator’s business had ceased trading and closed in April 2020, which led to his employment ceasing.  Since that time the first named applicant has been employed as a mechanic by other businesses and has been searching for another employer to sponsor him.   The first named applicant requested that the Tribunal delay making its decision for a further six to eight weeks to enable him to find another sponsor.

13. The Tribunal accepts that since ceasing his employment with the nominator, the first named applicant has obtained further employment and wishes to obtain another sponsor.  However, the Tribunal further notes that in March 2018 the Subclass 457 visa category was closed to new applications and consequently the first named applicant is not in a position to obtain a new sponsor in respect of his current visa application. Given this, the Tribunal is not prepared to adjourn its decision in the matter.

14. Based on the evidence before it, the Tribunal is not satisfied that there is an approved nomination of an occupation relating to the first named applicant by a standard business sponsor that has not ceased. 

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

16. In relation to the second and third named applicants, 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 and third named applicants do not meet the criteria for the visas as members of the family unit of a person who has satisfied the primary criteria.

17. 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 applicants would be able to satisfy the specific criteria for those streams.

    DECISION

18. 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.