Tran (Migration)

[2019] AATA 2199

Tran (Migration) [2019] AATA 2199 (4 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Minh Thu Tran

CASE NUMBER:  1619239

DIBP REFERENCE(S):  BCC 2015/3917838

MEMBER:R. Skaros

DATE:4 March 2019

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 04 March 2019 at 10:43am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination of an occupation – nomination refused – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 5, 65, 140GB, 359A

Migration Regulations (Cth) 1994, Schedule 2, cl 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 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).

2. The visa applicant applied for the visa on 17 December 2015.

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 visa on 1 November 2016 on the basis that cl.457.223(4)(a) was not met because the nomination of an occupation made by VD Nguyen & TT Hoang in respect of the applicant was not approved.

5. The applicant provided a copy of the delegate’s decision record with the application for review.

6. On 29 October 2018 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on 19 November 2018. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

7. On 4 November 2018, the Tribunal received correspondence from the applicant’s former representative, together with a completed Response to Hearing invitation form, indicating that the applicant would be attending the hearing. However, the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. The applicant’s nominating employer, VD Nguyen & TT Hoang, also did not appear at the combined hearing. The Tribunal dismissed the application for review in respect of the employer, however, within 14 days VD Nguyen & TT Hoang applied for reinstatement. The Tribunal decided to reinstate the application for review in respect of the nominating employer. In the circumstances, it was appropriate to also invite the applicant to a further hearing.

8. A further combined hearing was scheduled and the review applicant was invited to appear before the Tribunal on 4 February 2019. The applicant appeared before the Tribunal to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a).

    Requirement for an approved nomination

11. 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.

12. The applicant applied for the visa on the basis of a nomination made under s.140GB of the Act by VD Nguyen & TT Hoang in the occupation of Baker. That nomination was refused by the Department on 27 September 2016. Consequently, the applicant’s visa application was refused.

13. VD Nguyen & TT Hoang applied for review of the Department’s decision to refuse the nomination. On 6 February 2019, the Tribunal affirmed the Department’s decision not to approve the nomination.

14. On 7 February 2019, the Tribunal received by hand a letter signed by one of the applicant’s partners, Ms Hoang, stating that she had discussed with her spouse, Mr Nguyen, who is also a partner of the nominating business, the nominee’s salary and they have decided to reduce it to $80,000 per annum. She stated that the nominee is a skilled baker who has been working hard in their business 7 days a week for the whole year. Ms Hoang also stated that the applicant, who trains their son in baking, was needed for the business which has been established for a long time and has good economic prospects. Given the issue on which this case ultimately turned, it was not necessary for the Tribunal to consider these submissions.

15. On 12 February 2019 the Tribunal wrote to the review applicant in accordance with the requirements of s.359A inviting the review applicant to provide comments on information that it considered would be part of the reason for affirming the decision under review in writing. The information related to the Tribunal affirming the Department’s decision not to approve the nomination made by VD Nguyen & TT Hoang in respect of the applicant.    

16. On 27 February 2019, the Tribunal received by hand evidence of an application for judicial review with the Federal Circuit Court of Australia (FCCA). No further explanation or submissions were received with the court documents.

17. The Tribunal acknowledges that the sponsoring employer has applied for judicial review of the decision to refuse the nomination in relation to the applicant. However, this does not change the fact that the relevant nomination has been refused on review. The Tribunal is satisfied that the nomination in respect of the applicant has been ‘finally determined’ as defined in s.5 of the Act. Having completed the review of the related nomination, the Tribunal considers it appropriate, and in the interest of administrative efficiency, for it proceed to a decision in this matter.

18. As there is no approved nomination of an occupation in respect of the applicant that has not ceased, it follows that the requirements of cl.457.223(4)(a) are not met.

19. 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

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

    R. Skaros
    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.