Tsukamoto (Migration)

[2022] AATA 179

Tsukamoto (Migration) [2022] AATA 179 (20 January 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hidenori Tsukamoto
Ms Ana Beatriz Diaz Diaz  
Master Liam Ernesto Tsukamoto

REPRESENTATIVE:  Mr Hideaki Takahata

CASE NUMBER:  1901298

HOME AFFAIRS REFERENCE(S):          BCC2018/779185

MEMBER:K. Chapman

DATE:20 January 2022

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 20 January 2022 at 1:24pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved nomination – refusal of related nomination application set aside on review – decision made with no hearing necessary – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360(2)(a)

Migration Regulations 1994 (Cth), Schedule 2, cl 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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (Cth) (‘the Act’).

2. The first named applicant, Mr Hidenori Tsukamoto, applied for the visa on 16 February 2018. He included the second and third named applicants in the application. In the present matter, the first named applicant (hereafter ‘the applicant’) seeks the visa to work in the nominated occupation of Hairdresser (ANZSCO 391111). His position was nominated by Yellow Wave Pty Ltd (‘the nominator’). The nominator operates a hair salon in Sydney.

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 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 3 January 2019 on the basis that cl.457.223(4)(a) was not met, because the applicant was not the subject of an approved nomination as required. On 20 January 2019, the applicant applied to the Tribunal for review of the visa refusal decision. A copy of the delegate’s decision was provided with his application for review.

5. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   Requirement for an approved nomination

8. 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. The Tribunal notes that the nomination of the applicant for the position of Hairdresser (ANZSCO 391111) by Yellow Wave Pty Ltd (‘the nominator’) was refused by the Department on 4 December 2018. However, on 20 January 2022, the Tribunal set aside the decision not to approve the nomination and substituted a decision that the nomination is approved (see AAT matter 1837468).

9. Following careful consideration of the evidence, the Tribunal is satisfied that the nomination of the applicant in the occupation of Hairdresser (ANZSCO 391111) has been approved under s.140GB of the Act. Furthermore, the Tribunal is satisfied that at the time of the aforementioned approval the nominator was a standard business sponsor. Additionally, the Tribunal is satisfied that the nomination has not ceased. For these reasons the requirements of cl.457.223(4)(a) are satisfied.

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

11. The Tribunal finds that as the second and third named applicants applied for the visa on the basis of being a member of the family unit of the applicant, their applications will be determined by reference to the outcome of the latter’s application on remittal to the Department for reconsideration.

    DECISION

12. 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.

    K. Chapman
    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.