TOROPO (Migration)

[2021] AATA 346

TOROPO (Migration) [2021] AATA 346 (14 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Paul Toropo
Mr Junior Toropo

CASE NUMBER:  1815028

DIBP REFERENCE(S):  BCC2017/3812753

MEMBER:Stavros Georgiadis

DATE:14 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 14 January 2021 at 7:53pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Standard Business Sponsor stream – position of Automotive Electrician – no approved nomination – decision under review affirmed

LEGISLATION

Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, Schedule 2, cl 457.223

CASES

VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280      

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).

2. The visa applicants applied for the visa on 17 October 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 (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.

4. The delegate refused to grant the visas on 2 May 2018 in respect of all applicants on the basis that cl.457.223(4)(a) was not met because the primary visa applicant (the applicant) was not the subject of an approved nomination of the position of Automotive Electrician (ANZSCO 321111).

5. The applicants appeared before the Tribunal on 13 January 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Janelle Peacock, who is a Director of the sponsor employer, Arkon Auto Electrical and Instruments Pty Ltd, in the related AAT casefile 1811711 refusing the nomination of the position. The related matters were heard together in a combined hearing. 

6. The Tribunal exercised its discretion to hold the hearing by video conference. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by video conference having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by video conference. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) for grant of the visa to all applicants.

   Requirement for an approved nomination

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 (SBS) that has not ceased.

11. On 14 January 2021 the Tribunal affirmed the decision under review not to approve the nomination of an occupation in relation to the applicant in the related AAT casefile matter 1811711 on the basis of the reasons set out in the Decision Record of that date.  

12. In accordance with the procedure under s.359AA of the Act, the Tribunal put to the applicant at the hearing that in circumstances where there is no approved nomination, he would not meet an essential criterion to satisfy cl.457.223(4)(a) for the grant of the visa and that this would be the reason, or part of the reason, for affirming the decision under review not to grant the visas to all the applicants in this combined application. The Tribunal explained that the applicants could seek additional time to comment on, or respond, which the Tribunal would consider.  The applicants responded straight away and confirmed to the Tribunal that they understand that in such circumstances, the visa applications would not be successful and they accept that an approved nomination in respect of the primary visa applicant is a required criterion for the grant of the visas: (cl.457.223(4)(a)(i)).

13. The Tribunal has not returned the matter for any further hearing or submissions as, in these circumstances, and in view of authority in the case of VARSI v MINISTER FOR IMMIGRATION & ANOR [2018] FCCA 1280 (paragraphs 51-58) it would be ‘futile’ as ‘no useful result could ensue’ because the Subclass 457 visas cannot be granted in the absence of an approved nomination in respect of the primary applicant. The Tribunal is satisfied that there is no practical injustice in not returning the matter to the Tribunal following the decision to refuse the nomination and accepts the oral submissions made by the authorised representative on behalf of the applicants at the hearing, that concur with this.

    CONCLUSION

14. Having considered the available evidence before it discussed, the Tribunal finds that the nomination of an occupation in relation to the applicant has not been approved under section 140GB of the Act as is required under cl.457.223(4)(a)(i).

15. Therefore, the criteria in cl.457.223(4)(a) and thus cl.457.223(4) are not met.

16. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor (SBS) stream have not been met and the visas are refused in respect of all applicants as claimed members (father and son) of the same family unit. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicants would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Stavros Georgiadis
    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.