Singh (Migration)

[2019] AATA 6280

Singh (Migration) [2019] AATA 6280 (16 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Harwinder  Singh
Mrs Jaswinder  Kaur
Master Harjasveer Singh Cheema
Miss Sarveer Kaur Cheema

CASE NUMBER:  1903531

DIBP REFERENCE(S):  BCC2017/998261

MEMBER:Mr S Norman

DATE:16 October 2019

PLACE OF DECISION:  Sydney

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

Statement made on 16 October 2019 at 10:38am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsorship stream – no approved nomination of occupation – nominating business deregistered – no jurisdiction for tribunal to hear nominator’s application for review – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a), 457.321

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). The Department delegate’s decision was lodged with the Tribunal.

2. The visa applicants applied for the visa on 14 March 2017. 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 visas on 30 January 2019 on the basis that cl.457.223(4)(a) of Schedule 2 of the Migration Regulations was not met.

4. The applicants appeared before the Tribunal on 10 October 2019 to give evidence and present arguments. The applicants were represented in relation to the review by their 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 the grant of a Temporary Work (Skilled) (subclass 457) visa on the basis they had been nominated for the position of Chef (ANZSCO: 351311) by their sponsor (ROYAL INDIAN KITCHEN P/L). On 31 December 2018, the Department advised the applicant that their sponsor did not have an approved nomination in place for them. The applicant was requested to comment. No comment was received by the Department. The delegate then found that the applicant did not meet cl.457.223(4)(a).

8. Next, the delegate considered cl.457.321 (member of the family unit). However, as none of the applicant’s satisfied the primary criteria for the visa, none were entitled to be granted the visa based on their membership of a family unit of a person who had.

9. By decision dated 30 January 2019, the delegate then refused to grant the Temporary Business Entry visa.

   Section 359A letter

10. On 17 June 2019, the Tribunal found that it did not have jurisdiction to hear the sponsor/nominator’s merits review application (see AAT # 1901201). That was because the nominating business had been found to have been deregistered with ASIC on 8 April 2019.

11. By s.359A letter of 29 August 2019 (emailed to the authorised recipient), the Tribunal advised the applicant that on 18 March 2018 the Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 was introduced. Among other things, it repealed and replaced r.2.72 of the Migration Regulations 1994 (the Regulations), which set out the criteria for nominations relating to Subclass 457 (Temporary Work (Skilled)) visa applications, and also repealed the Subclass 457 (Temporary Work (Skilled)) visa. Further it was stated:

    It is a requirement for the grant of the visa that you are the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of your file suggests that you may not be the subject of an approved nomination by a standard business sponsor, or that you are subject to a pending nomination by a standard business sponsor, and that a new application for approval of a nomination in support of your Subclass 457 (Temporary Work (Skilled)) visa application can no longer be made.

    Without an approved nomination, you will not meet an essential criterion for the grant of the visa. This would mean that the decision under review must be affirmed.

    If you are now the subject of (ie) an approved or pending nomination for a Subclass 457 (Temporary Work (Skilled)) visa, please provide us with evidence about this. Alternatively, if your circumstances have changed and you no longer wish to continue with this application for review, please complete the enclosed withdrawal form and return it us.

12. By email of 30 September 2019, the applicant said they did not believe they were at fault; that he and his family had resided in Australia since 2009; that he may not be able to find a ‘job in India’; that his children had lost their first language; and he also referred to the tragic death of a child. However, and as explained at hearing, the Tribunal is obligated to apply the law as it relates to this case.

13. After discussing same at hearing, the Tribunal notes it is a requirement for the grant of the Subclass 457 visa that the applicant is the subject of an approved nomination by a standard business sponsor: cl.457.223(4) of Schedule 2 to the Regulations. A review of the applicant’s file indicated he was not the subject of an approved nomination by a standard business sponsor, and that he was not the subject of a pending nomination by a standard business sponsor. Further, that a new nomination application for approval, related to his Subclass 457 visa, could no longer be made. Without an approved nomination, the applicant does not meet an essential criterion for the grant of the visa. Therefore, the decision under review must be affirmed.

14. The Tribunal also considered cl.457.321 (member of the family unit). However, as none of the applicants satisfied the primary criteria for the visa, none were entitled to be granted the visa based on their membership of a family unit of a person who had.

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 applicants Temporary Business Entry (Class UC) visas.

    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.