Vahala (Migration)

[2018] AATA 3395

Vahala (Migration) [2018] AATA 3395 (21 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Patrik Mikael Vahala
Mrs Xue Vahala
Miss Cecilia Erica Vahala

CASE NUMBER:  1620841

DIBP REFERENCE(S):  BCC2016/1277459

MEMBER:Bridget Cullen

DATE:21 August 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 21 August 2018 at 4:11pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled) – Standard business sponsor – Nomination refusal affirmed by the Tribunal – Requirements not met – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB, 359A
Migration Regulations 1994, Schedule 2 cls 457.223, 457.224, 457.321

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 24 March 2016.

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 29 November 2016 on the basis that cl.457.223(4)(a) was not met because the primary applicant is not the subject of an approved nomination.

5. The applicants appeared before the Tribunal on 7 March 2018 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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

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.

9. The Tribunal has available to it for this review the Tribunal's file, the Department file BCC2016/1277459, and the Tribunal related file for the nomination.

10. On 31 July 2018, the Tribunal affirmed a decision made by the Department not to approve a nomination by the sponsor, Ceci’s Catering Pty Ltd. The nomination was for the primary visa applicant to be employed as a Finance Manager (ANZSCO 132211).

11. On 1 August 2018, the Tribunal wrote to the applicants under section 359A of the Act inviting them to provide information relevant to the review.

12. The Tribunal provided particulars that the Tribunal had made a decision not to approve the nomination by the sponsor and that the information before the Tribunal was that there was no current approved nomination under section 140GB of the Act.

13. The applicants responded, via their registered migration agent, on 14 August 2018, indicating that they acknowledged that they did not meet the “criteria set out at Regulation 457.224. Our client has instructed that he does not believe the Tribunal has properly construed the role of a Finance Manager within the sponsoring business…”

14. The Tribunal has had regard to the information and the decision made by the Tribunal on 31 July 2018 to affirm the decision made by the Department to refuse the nomination application by the approved sponsor. The Tribunal finds as a result that the primary visa applicant is not the subject of a nomination of an occupation which has been approved under section 140GB of the Act.

15. For these reasons, the requirements of cl. 457.223(4)(a) are not met.

16. 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.

17. 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

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

    Bridget Cullen
    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.