VINAS (Migration)

[2021] AATA 4018

VINAS (Migration) [2021] AATA 4018 (18 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jovel VINAS
Mrs Rea VINAS
Mr Steffano Collin VINAS
Ms Savannah Rae VINAS

CASE NUMBER:  1827705

HOME AFFAIRS REFERENCE(S):          BCC2017/2290127

MEMBER:Mary Sheargold

DATE:18 October 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 18 October 2021 at 9:48am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor stream – subject of approved position nomination – refusal of related nomination application affirmed on review – applicant currently working for another employer – legislative changes mean no capacity to seek new sponsorship – no discretion to consider circumstances – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A,
Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(a), 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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 28 June 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 (Cth) (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 17 September 2018 on the basis that cl 457.223(4)(a) was not met because the first named applicant’s prospective employer, Family of Four Pty Ltd did not have an approved nomination in place for.

5. The first named applicant appeared before the Tribunal by telephone on 2 September 2021 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. 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 telephone. The Tribunal is satisfied that the first named applicant was given a fair opportunity to give evidence and present arguments.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Tagalog and English languages.

7. The applicants were represented in relation to the review by their registered migration agent, but the agent did not participate in the hearing.

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 case is whether the primary visa applicant meets the requirements of cl 457.223(4)(a).

   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 that has not ceased.

11. The delegate refused to approve this application because at the time of the delegate’s decision, there was no approved nomination from the first named applicant’s sponsoring employer, Family of Four Pty Ltd, for the nominated position of Electrical Equipment Trades Worker, ANZSCO 342313.

12. At the hearing, the first named applicant explained that he believed the application had been refused because his nominating sponsor did not provide the evidence requested for the nomination to be approved.  He asked the Tribunal what documents he needed to provide in order to demonstrate that the nomination application was valid.  The Tribunal explained to the first named applicant that this hearing was to consider his visa application only, and information and evidence supporting the nomination application would not be able to be relied upon to make findings in this case.  The Tribunal explained that it was confined to considering whether or not the first named applicant had an approved nomination at the time of the Tribunal’s decision.

13. The first named applicant told the Tribunal that he no longer worked for his nominating sponsor and had found similar work with another employer, and that he currently worked for them in a yoghurt factory in Sydney.  The first named applicant pleaded with the Tribunal not to refuse his application during the Covid-19 pandemic because he did not want to have his family return to the Philippines at this time.  The Tribunal expressed its sympathy for the applicant’s position and noted that any future applications for a visa to remain in Australia would need to be discussed with the Department.

14. On 14 September 2021, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting them to comment on or respond to information that would be the reason, or part of the reason, for affirming the decision under review.  The Tribunal’s letter set out the particulars of that information being that the nomination application made by Family of Four Pty Ltd for the position of Electrical Equipment Trades Worker had been refused by the Department, and that the Tribunal had recently affirmed the Department’s decision, and that this meant there may not be an approved nomination at the time of the Tribunal’s decision. 

15. The letter stated this information was relevant to the review because it was a requirement for the grand of the visa that the position specified in the visa application is the subject of an approved nomination.  The letter stated that if the Tribunal relied on this information in making its decision, it may find that the position specified in the visa application was not the subject of an approved nomination, and that this would mean the first named applicant did not satisfy a requirement for the grant of the visa and the Tribunal would have to affirm the decisions under review. The applicant was invited to comment or respond by 28 September 2021.

16. On 27 September 2021, the applicants’ representative wrote to the Tribunal requesting an extension of time to respond to the Tribunal’s letter.  The applicants requested an extension to 15 October 2021 on the basis that they were having trouble communicating with the nominating sponsor due to current lockdown restrictions in their local government area.  The Tribunal granted an extension of time until 15 October 2021.

17. On 15 October 2021, the applicants wrote to the Tribunal and provided comments.  In the letter, the first named applicant noted that he has worked in the nominated occupation for over 5 years, that his nominating sponsor believed it was necessary to sponsor him for her business, and that given the circumstances of the Covid-19 pandemic, particularly in the applicants’ home country, the Philippines, they seek the Tribunal’s consideration to allow the first named applicant to find a new business sponsor.

18. The Tribunal notes that applications to sponsor workers for a Subclass 457 visa closed on 18 March 2018.  Therefore, there is no capacity for the applicants to seek a new sponsorship to support this particular visa application.  While the Tribunal is sympathetic to the applicants’ circumstances and the realities of receiving this decision during the Covid-19 pandemic, the Tribunal has no discretion to take the applicants’ circumstances into account.  Rather, it is confined to a consideration as to whether the first named applicant meets the requirements in cl.457.223(4)(a), that is, whether there is an approved nomination from the applicant’s nominating sponsor.  Based on the evidence before it, the Tribunal must find that there is no approved nomination. Therefore, 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.

20. Pursuant to cl.457.321, the Tribunal must also affirm the decisions to refuse to grant Subclass 457 visass to the secondary applicant as they are not the member of a family unit of a person who holds a Subclass 457 visa, and there is no evidence that they meet the primary criteria in their own right.

    DECISION

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

    Mary Sheargold
    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.