Wang (Migration)

[2018] AATA 3561

Wang (Migration) [2018] AATA 3561 (6 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Xu Wang
Ms Zhe Shen

CASE NUMBER:  1621678

DIBP REFERENCE(S):  BCC2016/1141040

MEMBER:Danielle Galvin

DATE:6 August 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 06 August 2018 at 1:42pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work Skilled) – Standard business sponsorship – Nomination not approved – Secondary applicants – Criteria not met – Decision under review affirmed 

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 457.223, 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 16 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 6 December 2016 on the basis that requisite criteria in cl.457.223(4)(a).had not been met. The sponsoring employer (the nominator), Toreach Pty Ltd, did not have an approved nomination in place at the time the decision was being made and therefore cl.457.223(4)(a) had not been met.

5. On 18 December 2017 Mr Wang made an application for a review of the Department decision on his own behalf and for his partner, Ms Zhe Shen.

6. On 19 July 2018 the Tribunal invited Mr Wang to give comments or respond to the Tribunal’s decision of 9 July 2018 which affirmed the Department decision not to grant approval of the nomination. The invitation was sent by email to the email address provided in the application for Mr Wang. The response was required by 2 August 2018. No response was received.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4).

   Requirement for an approved nomination

9. 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.

10. There is no evidence that there is an approved nomination. The Tribunal finds that the requirements for the standard business sponsor stream have not been met by the primary applicant, Mr Wang. For this reason the requirements of cl.457.223(4)(a) are not met.

11. The primary applicant has made no claims in respect of the alternative stream in cl.457.223 and there is no evidence that the primary visa applicant would be able to satisfy the specific criteria for the alternative stream.

12. Ms Zhe Shen is the secondary applicant. She has made no claims against the primary criteria for the grant of a subclass457-Temporary Work (Skilled) visa. As she is not the subject of an approved nomination which has been approved under s.140GB of the Act Ms Shen does not satisfy either paragraph 457.223 (2)(b) or cl.457.223(4)(a). Ms Shen does not therefore meet the primary criteria for the grant of a subclass 457 visa.

13. The Tribunal has also assessed whether Ms Shen would succeed in her application as against the secondary criteria for the granting of a 457 visa.

14. Clause 457.321 envisages a successful application if the primary applicant has succeeded in being granted a 457 visa and is part of the family unit of the primary applicant .As Mr Wang has not and could not succeed in his application and there is no evidence that the two applicants are family members the criteria required to be met in cl.457.321 have not been met.

    DECISION

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

    Danielle Galvin
    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.