Udhin (Migration)

[2018] AATA 5467

Udhin (Migration) [2018] AATA 5467 (1 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sachidanand Udhin
Miss Bhavini Udhin
Miss Bonita Udhin

CASE NUMBER:  1517231

DIBP REFERENCE(S):  BCC2015/2207654

MEMBER:Antonio Dronjic

DATE:1 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 01 November 2018 at 3:33pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – standard business sponsor stream – applicant was not the subject of an approved nomination at the time of decision – nomination approval ceased by operation of r.2.75 – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359
Migration Regulations 1994, r 2.75, Schedule 2, cls 457.223, 457.321
Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018, cl 6704

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 2 August 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 visas on 24 November 2015 on the basis that cl.457.223 (4)(a) was not met because the business nomination application lodged by the first named applicant’s prospective employer, Centron Willows ATF Parvo Family Trust, was not approved by the Department.

5. The applicants applied for review of the primary decision on 14 December 2015 and provided a copy of the Department’s decision to the Tribunal.

6. On 16 September 2016, the applicants’ former representative wrote to the Tribunal requesting the withdrawal of the review applications.

7. On 26 September 2016, the applicants’ newly appointed representative wrote to the Tribunal stating that the applicants no longer wished to withdraw their review applications and that the previous migration agent compelled the applicants’ to sign the withdrawal letter.

8. On 27 September 2016, the Tribunal (differently constituted) accepted the revocation of withdrawal of the review applications.

9. On 25 November 2016, the applicants’ representative submitted a copy of the Department’s acknowledgment of sponsorship application letter dated 21 November 2016, as evidence that the first named applicant’s prospective employer applied for approval of sponsorship status.

10. On 29 November 2016, the applicants’ representative submitted a copy of the Department’s acknowledgment of nomination application letter dated 28 November 2016, as evidence that the first named applicant’s prospective employer applied for approval of business nomination.

11. On 18 May 2017, the applicants’ representative submitted a copy of the Department’s sponsorship approval notice as evidence that the first named applicant’s prospective employer was approved as a standard business sponsor on 15 May 2017 for the period of five years.

12. On 1 June 2017, the applicants’ representative submitted a copy of the Department’s nomination approval notice, as evidence that the nomination application lodged by the first named applicant’s prospective employer was approved by the Department on 31 May 2017.

13. The matter was constituted to the current Tribunal on 16 August 2018.

14. On 29 August 2018, the Tribunal wrote to the applicants pursuant to s.359(2) of the Act, inviting the applicants to provide information in writing that demonstrates that the first named applicant meets the requirements of cl.457.223(4)(a).

15. On 10 September 2018, the applicants’ representative wrote to the Tribunal submitting that the applicant’s prospective employer is ‘in a process of submitting new subclass 482 nomination’.

16. On 11 September 2018, the Tribunal wrote to the applicants advising that it had considered all the material before it relating to the applications but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicants to give oral evidence and present arguments at a hearing scheduled for 30 October 2018.

17. On 29 October 2018, the applicants’ representative submitted:

    ·A copy of the Department’s acknowledgment of nomination application letter dated 8 October 2018, as evidence that the first named applicant’s prospective employer applied for an approval of business nomination; and

    ·A copy of the work reference letter dated 29 October 2018, provided by the first named applicant’s prospective employer.

18. The first named applicant appeared before the Tribunal on 30 October 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the French and English languages. The applicants were represented in relation to the review by their registered migration agent who attended the hearing.

19. After explaining the requirements of cl.457.223 (4)(a) to the first named applicant, I noted that the applicants’ representative submitted a copy of the Department’s nomination approval notice, as evidence that the nomination application lodged by the first named applicant’s prospective employer was approved by the Department on 31 May 2017. I explained that this nomination approval ceased on 31 May 2018 by operation of r.2.75 (2)(b).

20. I further noted that his representative submitted a copy of the Department’s acknowledgment of nomination application letter dated 8 October 2018 as evidence that the applicant’s employer lodged a new nomination application with the Department on 8 October 2018. The applicant confirmed this to be correct in his evidence.

21. I explained to the applicant that pursuant to the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 (the amending regulation), as of 18 March 2018, Subclass 457 was repealed and replaced with the new Subclass 482 (Temporary Skill Shortage) visa.

22. As it is no longer possible to apply for a Subclass 457 visa, new nominations lodged after 18 March 2018 will not operate to support an outstanding application for a Subclass 457 visa, including the review applications in respect of the decision to refuse the grant of a Subclass 457 visa. The new provisions allow for the nomination of an occupation in relation to existing Subclass 457 visa holders.

23. I explained to the applicant that, because he is not a Subclass 457 visa holder, even if the Department approves the business nomination lodged by his prospective employer on 8 October 2018, he will not be able to rely on such an approval to meet the requirements of cl.457.223(4)(a).

24. The applicants’ representative submitted that in his view, the eventual approval of a new nomination lodged with the department on 8 October 2018, could be used for the existing Subclass 457 visa applicants and stated his intention to seek judicial review on this point.

25. I indicated to the first named applicant that, based on the evidence before me, I cannot be satisfied that he is, at the time of decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named visa applicant that has not ceased.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Requirement for an approved nomination

27. 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.

    Cessation of nomination approval of 21 May 2017

28. The first named applicant’s prospective employer submitted to the Tribunal a copy of the Department’s nomination approval notice dated 31 May 2017. As this nomination was lodged with the Department before 18 March 2018, the Tribunal must determine if ‘savings provisions’ in Cl. 6704 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 are applicable.

29. Clause 6704 of the Migration Legislation Amendment (Temporary Skill Shortage Visa and Complementary Reforms) Regulations 2018 provides inter alia that:

    (15) However, paragraph 2.75(2)(b) does not apply in relation to a nomination made before the commencement day [18 March 2018] if:

    (a) before the commencement day, the person identified in the nomination applied for a Subclass 457 (Temporary Work (Skilled)) visa on the basis of the nomination; and

    (b) within 12 months after the day on which the nomination is approved, the person applies to the Tribunal for review of a decision to refuse to grant the visa.

30. I find that ‘savings provisions’ do not apply in the present case as the applicant did not apply to the Tribunal for review of a decision to refuse to grant the visa within 12 months after the day on which the nomination is approved (being the 31 May 2017). I find that the applicant applied for review of a decision to refuse to grant the visa on 14 December 2015. Accordingly, the requirements of cl.6704 (15)(b) are not met.

31. Based on the copy of the Department’s nomination approval notice, provided to the Tribunal by the applicants, I find that nomination approval of 31 May 2017 ceased by operation of r.2.75 (2)(b) on 31 May 2018.

32. Based on the evidence before it, including the applicant’s oral evidence, I am not satisfied that the first named applicant is, at the time of my decision, the subject of an approved business nomination that has not ceased or that there is an approved nomination of an occupation in relation to the first named visa applicant that has not ceased. Accordingly, I find that the first named applicant does not satisfy cl.457.223 (4)(a).

33. 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.

34. As the first named applicant does not satisfy the primary criteria for the grant of a Subclass 457 visa, the second and third named applicants do not satisfy the secondary criteria for the grant of the visa, in particular cl.457.321 which requires that an applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.

    DECISION

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

    Antonio Dronjic
    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.