Walsh (Migration)

[2022] AATA 1218

Walsh (Migration) [2022] AATA 1218 (16 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr David James Walsh

REPRESENTATIVE:  Ms Jeri Levinsky (MARN: 0214675)

CASE NUMBER:  1836627

HOME AFFAIRS REFERENCE(S):          BCC2018/490479

MEMBER:Namoi Dougall

DATE:16 March 2022

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 16 March 2022 at 9:52am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – subject of an approved nomination ­­– decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018
Migration Regulations 1994 (Cth), Schedule 2, cls 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 Home Affairs to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 30 January 2018.

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 visa on 27 November 2018 on the basis that cl 457.223(4)(a) was not met because Mr David Walsh, (the applicant) was not the subject of an approved nomination by a standard business sponsor. The application for nomination approval that had been made by the applicant’s prospective employer, Ulster Services Pty Ltd (the nominating business) had been refused by the Department.

5. On 1 March 2022, the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicants to provide comments in writing on information that it considered would be part of the reason for affirming the decision under review. The relevant information before the Tribunal was that the application for review of the Department’s decision to refuse the nominating business’s nomination was finalised by the Tribunal as a withdrawal on 9 July 2021.

6. The Tribunal’s letter also informed the applicants that due to the introduction of The Migration Amendment (Temporary Skill Shortage visa and Complementary Reforms) Regulations 2018 (the Amending Regulations), which commenced 18 March 2018 and repealed and replaced the criteria for nominations relating to proposed Subclass 457 visa applicants, a new application for approval of a nomination in respect of an outstanding 457 visa application can no longer be made.

7. The Tribunal’s letter also stated that the information is relevant to the review because it is a requirement for the grant of the visa that a nomination of an occupation in relation to the primary applicant has been approved under s.140GB of the Act: cl.457.223(4)(a). The Tribunal’s letter then explained that if the Tribunal relied on the above information in making its decision, then it may find that the nomination of an occupation in relation to the primary applicant has not been approved and that a new application cannot be made. Consequently, the primary applicant would not meet the requirements of cl.457.223(4)(a) and the decision under review would be affirmed.

8. The applicant was invited to appear before the Tribunal on 15 March 2022 to give evidence and present arguments.

9. The applicant did not appear before the Tribunal on 15 March 2022.

1. The applicant was represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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

1. 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.

2. In this case, the applicant applied for the visa on the basis of a nomination of an occupation made by the nominating business. The nomination was refused on 18 September 2018, and the nominating business applied to the Tribunal for review of that decision. On 9 July 2021, the Tribunal finalised the nominating business’s application for review as a withdrawal.

3. Further, the Tribunal wrote to the applicant pursuant to s.359(A) on 1 March 2022 in which the applicant was put on notice that he may not satisfy the requirements in cl. 457.223(4)(a) and no response was received by the Tribunal.

1. The evidence before the Tribunal is that the nomination in relation to the applicant in support of the Subclass 457 visa has been refused. That decision was reviewed by the Tribunal and the Tribunal affirmed the Department’s decision to not approve the nominating business’s nomination application, meaning that the decision refusing the nomination stands. As the applicant is not the subject of an approved nomination that can support his application for a Subclass 457 visa, it follows that the applicant does not satisfy the requirement in cl.457.223(4)(a).

2. 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

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

Namoi Dougall
Member

ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

457.223

…

Standard business sponsorship

…

1. 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.

   …

2. 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.

   …

3. 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.