Song (Migration)

[2018] AATA 5425

Song (Migration) [2018] AATA 5425 (3 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaekwan Song
Mrs Jisun Kim
Miss Yewon Song

CASE NUMBER:  1701162

DIBP REFERENCE(S):  BCC2016/2827295

MEMBER:Susan Trotter

DATE:3 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 457 visa:

·

cl.457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 03 October 2018 at 5:49pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – Contract Administrator – applicant was not the subject of an approved nomination – sponsor was approved as a standard business sponsor– Decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75, Schedule 2, cls 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 then Minister for Immigration and Border Protection[1] (the Minister) to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

[1] Now the Minster for Immigration, Citizenship and Multicultural Affairs

2.     The visa applicants applied for the visa on 25 August 2016.

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 (the Regulations).

4.     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.

5.     The delegate refused to grant the visas on 13 January 2017 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 as required.

6.     The applicants lodged an application for review of the delegate’s decision with the Tribunal on 23 January 2017.

7.     The applicants were represented in relation to the review by their registered migration agent.

8.     In accordance with s.360(2)(a) of the Act, the Tribunal considered it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the applicants to appear before it to give evidence in relation to the decision under review.

9.     For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

10.      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.

11.      The issues to be determined by the Tribunal are therefore:

(a) Is there is a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act? And, if so,

(b)  Was the nomination was made by a person who was a standard business sponsor at the time the nomination was approved? And, if so,

(c) Has the approval of the nomination not ceased as provided for in r.2.75?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 - Is there is a nomination of an occupation in relation to the applicant that has been approved under s.140GB of the Act?

12.      The first-named applicant was nominated by J&H Business Pty Ltd for the occupation of Contract Administrator (ANZSCO code 511111). The nomination application was refused by the then Department of Immigration and Border Protection (the Department) and consequently the visa application was refused.

13.      On 3 October 2018, the Tribunal set aside the Department’s decision and approved the nomination[2].

[2] Tribunal file no 1621287

14.      Clause 457.223(4)(a)(i) is therefore met.

Issue 2 - Was the nomination was made by a person who was a standard business sponsor at the time the nomination was approved?

15.      Records of the Department of Home Affairs confirm that J&H Business Pty Ltd was approved as a standard business sponsor on 10 October 2016 for a period of five years. The nomination was therefore made by a person who was a standard business sponsor at the time the nomination was approved.

16.      Clause 457.223(4)(a)(ii) is therefore met.

Issue 3 - Has the approval of the nomination not ceased as provided for in r.2.75?

17. Clause 457.223(4)(a)(iii) requires the Tribunal to consider whether the approval of the nomination has ceased as provided for in r.2.75(2) as in force immediately prior to 18 March 2018.

18. None of the specified occurrences, upon which a nomination ceases, listed in r.2.75(2) apply. The Tribunal is therefore satisfied that the nomination has not ceased. Clause 457.223(4)(a)(iii) is therefore met.

Conclusion

19.      As all the subparagraphs of cl.457.223(4)(a) have been met, the first-named applicant meets cl.457.223(4)(a).

20.      In respect of the other applicants, who applied on the basis of each being a member of the family unit of the first-named applicant, their entitlement to a visa is initially dependent on whether the first-named applicant is successful in obtaining a Subclass 457 visa, and then on whether they meet additional criteria which apply. Their applications will be determined by reference to the outcome of the first-named applicant’s application on remittal to the Minister for reconsideration^.

21.      Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for Subclass 457 visas.

DECISION

22.      The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first-named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations.

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.