Singh (Migration)

[2020] AATA 4037

Singh (Migration) [2020] AATA 4037 (23 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1724416

DIBP REFERENCE(S):  BCC2016/3360455

MEMBER:Mr S Norman

DATE:23 July 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 23 July 2020 at 11:50am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream - position of Primary Products Inspector – no approved nomination – business ownership changed – new nomination lodged – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 359
Migration Regulations 1994, Schedule 2, cls 457.223, 457.311

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The visa applicant applied for the visa on 10 October 2016. 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. 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.

3. The delegate refused to grant the visa on 19 September 2017 on the basis that cl.457.223(4)(a) was not met.

4. The applicant appeared before the Tribunal on 2 July 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Savinder SINGH (representing the associated nominator); and Mr Meneen SINGH (a community member). The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

6. 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.

7. The applicant applied for a Temporary Business Entry (Class UC) visa on the basis of being nomination for the position of a Primary Products Inspectors nec (ANZSCO: 311399). The nominator was GJ Australian Bananas Pty Ltd.

8. On 4 August 2017, a Department delegate refused the nomination application lodged by GJ Australian Bananas Pty Ltd. By letter of the same date the applicant was provided an opportunity to either:

   ·     comment on their intentions regarding the visa application (including providing evidence that they are the subject of an approved nomination): or

   ·     withdraw the application in writing

9. On 4 September 2017, the applicant advised the Department they would seek review at the Tribunal. However, as the applicant was not the subject of an approved nomination, the delegate was not satisfied the applicant met cl.457.233(4)(a); or cl.457.223(4).

10. Next, the delegate considered cl.457.311 (membership of the family unit). However, as no applicant met the primary criteria for the grant of the visa, none were entitled to the grant of the visa based on their membership of the family of someone who had.

11. The delegate then refused to grant the applicant a Subclass 457 – Temporary Work (Skilled) visa to the applicant.

12. By s.359A letter dated 8 July 2020 (emailed to the authorised recipient/agent), the Tribunal advised the applicant that on 7 July 2020, the Tribunal had affirmed the Department's decision not to approve the nomination in relation to them made by their nominating employer, GJ Australian Bananas Pty Ltd. Further, that this information was relevant because cl.457.223(4)(a) required that the nomination made in relation to them by their nominating employer had been approved.  Also, that if the Tribunal relied on this information, it may find that the nomination in relation to them had not been approved and consequently the decision under review would be affirmed. The applicant was then invited to give comments on or respond to the above information in writing, by 22 July 2020. At the time and date of this decision, no material comment had been lodged.

13. Therefore, and based on the information before it, the Tribunal is not satisfied the nomination made in relation to the applicant by their nominating employer had been approved.

14. For this reason, the requirements of cl.457.223(4)(a); and cl.457.223(4) are not met.

15. 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

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

    Mr S Norman
    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.