Singh (Migration)

[2021] AATA 1067

Singh (Migration) [2021] AATA 1067 (25 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Avtar Singh
Miss Gurleen Kaur
Mrs Daljit Kaur

CASE NUMBER:  1812720

HOME AFFAIRS REFERENCE(S):          BCC2017/4336118

MEMBER:Susan Trotter

DATE:25 March 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 25 March 2021 at 4:52pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– Cook –applicant was not a subject of an approved nomination – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, 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 18 November 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.

4. 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 27 April 2018 on the basis that the first-named applicant (the applicant) did not meet cl.457.223(4)(a) of Schedule 2 to the Regulations as he was not the subject of an approved nomination as required. As regards the second-named applicants, they were consequently not each a member of the family unit of a person who, having satisfied the primary criteria was a holder of a Subclass 457 visa, as required.

6. The applicants lodged an application with the Tribunal on 3 May 2018 seeking review of the delegate’s decision. The applicants provided a copy of the delegate’s decision to the Tribunal.

7. On 5 March 2021, the Tribunal invited the applicants to comment on or respond to certain information before it, in particular information suggesting that the applicant is not, as required for the grant of the visa, the subject of an approved nomination by a standard business sponsor that has not ceased. It was also noted that consequently this would mean that the second-named applicant would not meet a necessary secondary criterion.

8. On 13 March 2021, the Tribunal received a response from the applicants indicating, amongst other things, that the applicant had returned to India due to his father being unwell and had been unable to return to Australia to date due to the COVID-19 travel ban and asking that the decision be deferred until he was back in Australia. He noted that he had spent more than ten years in Australia and that his family was dependent on his Australia income such that he was seeking a COVID-19 relief visa so that he could start work again.

9. On 19 March 2021, the Tribunal received a written response from the applicant outlining the background circumstances surrounding the visa application and seeking that his matter be considered with compassion to arrive at a decision which allows him to stay permanently in Australia with his wife and daughters.

10. The applicants appeared before the Tribunal by telephone on 25 March 2021 to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The issue in the present case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a) of Schedule 2 to the Regulations.

    Requirement for an approved nomination

13. 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.

14. As set out in the Tribunal’s letter of 5 March 2021 to the applicants, an application for approval for the position of Cook, to be undertaken by the applicant, made by Simi Traders Pty Ltd was refused by a delegate of the Minister of Home Affairs on 28 March 2018 and, on 23 October 2020, in case file 1810921, the Tribunal affirmed the decision not to approve the nomination.

15. The Tribunal discussed with the applicant that, therefore as outlined in the Tribunal’s letter of 5 March 2021, the evidence before the Tribunal is that there is no approved nomination by a standard business sponsor that has not ceased, and that, absent evidence further evidence to the contrary, the Tribunal would have to conclude that a necessary requirement for the visa to be granted to him as primary visa applicant would not and could not be met.

16. As discussed with the applicant at hearing, whilst not diminishing in any way the personal importance of the matters raised by the applicant in his written submissions of 19 March 2020, if there is no approved nomination, one of the necessary requirements for the visas to be granted to the applicant, and consequentially to the secondary applicants, is not met, and there is no discretion allowed in the legislation for the Tribunal to disregard the requirement.

17. The applicant asked the Tribunal if he could be given some additional time in order for him to look at other options that might be available to him. As discussed at the hearing, it is not appropriate for the Tribunal to indefinitely delay finalisation of this matter in circumstances where on the evidence before it a requirement for the visa is not and cannot be met.

18. At the time of this decision, there is no evidence before the Tribunal of an approved nomination of an occupation under s.140GB relating to the applicant.

19. On 18 March 2018, the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (“the Amending Regulation”) commenced and, among other things, repealed and replaced the criteria for nominations relating to proposed Subclass 457 (Temporary Work (Skilled)) visa applicants. The Subclass 457 (Temporary Work (Skilled)) visa was also repealed and closed to new applications.

20. It is no longer possible to make a nomination in respect of a Subclass 457 visa applicant, following the commencement of the Amending Regulations on 18 March 2018.

21. The Tribunal finds that there is no approved nomination by a standard business sponsor that has not ceased.

22. It follows that the requirements of cl.457.223(4)(a) are not met and cannot now be met.

    Conclusion

23. 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 applicant would be able to satisfy the specific criteria for those streams.

24. It follows that as the applicant does not satisfy the applicable criteria for the grant of a Subclass 457 visa, the decision under review to refuse to grant the applicant the visa must be affirmed.

    Secondary applicants

25. The Tribunal must also affirm the decision not to grant the second-named applicants a Subclass 457 visa as they are not each a member of the family unit of a person who holds a Subclass 457 visa as required by cl.457.321, and there is no evidence that they meet the primary visa criteria for this Subclass in their own right.

    DECISION

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

    Susan Trotter
    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.