Tian Hock Development Pty Ltd (Migration)

[2021] AATA 4279

Tian Hock Development Pty Ltd (Migration) [2021] AATA 4279 (29 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Tian Hock Development Pty Ltd

VISA APPLICANT:  Mr Ming Huang

CASE NUMBER:  1829055

HOME AFFAIRS REFERENCE(S):          BCC2017/2344144

MEMBER:Wan Shum

DATE:29 October 2021

PLACE OF DECISION:  Sydney

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

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

Statement made on 29 October 2021 at 11:07am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application set aside on review – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a)

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 applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 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.

4. The standard business sponsor in the present case is Tian Hock Development Pty Ltd who sought approval for the nomination of the occupation of Carpenter and identified the applicant for the position. The nomination was not approved because the delegate was not satisfied that the position was genuine.

5. As a consequence, on 22 September 2018, the delegate in this case refused to grant the visas on the basis that cl 457.223(4)(a) was not met.

6. Tian Hock Development Pty Ltd sought review of these decisions and were represented in relation to the review by the same registered migration agent.

7. On 28 October 2021, the Tribunal approved the application made by Tian Hock Development Pty Ltd for the nomination of the occupation of Carpenter under s 140GB of the Act. That nomination relates to the visa applicant. Tian Hock Development Pty Ltd was approved as a standard business sponsor for a five-year period commencing 8 August 2017 so is currently approved. There is thus an approved nomination in respect of the visa applicant that was made by a person approved as a standard business sponsor at the time of approval; and that nomination has not ceased. The requirements of cl 457.223(4)(a) are thus met.

8. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa which includes whether the applicant has the skills, qualifications and employment background to perform the tasks of the nominated occupation.

   DECISION

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

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

   Wan Shum
   Member