Wang (Migration)

[2021] AATA 5375

Wang (Migration) [2021] AATA 5375 (18 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Hongfei Wang
Mrs Wujing Lin

CASE NUMBER:  1828181

HOME AFFAIRS REFERENCE(S):          BCC2017/3169472

MEMBER:Ian Berry

DATE:18 November 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 18 November 2021 at 3:37pm

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

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 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 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 1 September 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.

   The delegate’s decision

4. The delegate refused to grant the visas on 5 September 2018 as cl 457.223(4)(a)(i) was not met because the applicants did not have an approved nomination.

5. The applicants appeared before the Tribunal on 30 July 2021 to give evidence and present arguments. The Tribunal received oral evidence from the primary applicant Mr Hongfei Wang. The hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent Ms N Liu registered migration agent number 0964114. The representative attended the Tribunal hearing.

7. The Tribunal exercised its discretion to hold the hearing by video. During the COVID-19 pandemic, special circumstances exist for the video hearing. The Tribunal also considered the Tribunal’s objective of providing a review that is fair, just, economical and expedient. A hearing by video achieved this end.

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)(i).

   Requirement for an approved nomination

10. Clause 457.223(4)(a) requires that there is an approved nomination of his occupation as a Contract or Program Administrator, where he is identified in his sponsors application.

11. The applicant’s sponsor T E Wang Pty Ltd made its application sponsoring the applicant. The Minister’s delegate affirmed the decision in refusing the sponsor’s application on 20 April 2018. The applicant’s sponsor applied to the Tribunal to review that decision on 10 May 2018.

12. The Tribunal decided to affirm the delegate’s decision be affirmed with the decision having been made on 19 October 2021[1].

    [1] The sponsors application was case number 1813628.

    S.359A invitation

13. On 25 October 2021, the Tribunal wrote to the applicants under s.359A of the Act, inviting them to provide information or comment, in writing, on the information that the Tribunal considered would be the reason or part of the reason for affirming the decision under review. The applicants requested an extension of time within which to consider the invitation. On 5 November 2021, the Tribunal confirmed that the request for an extension of time was granted in that the applicants were to comment or respond to that invitation by 15 November 2021.

14. The invitation was sent to the last address provided in connection with the review and advised that, if the information or comments were not provided in writing by 15 November 2021, the Tribunal may make a decision on the review without taking further steps to obtain the comments and further, the applicants would lose any entitlement they might otherwise have under the Act.

15. The Tribunal has decided to proceed to decision without taking further steps to obtain comments or receive information.

16. As the applicant is not the subject of an approved nomination, the Tribunal is satisfied and finds the requirements of cl 457.223(4)(a) are not met.

    Secondary applicant

17. In respect of the second named applicant, the Tribunal is satisfied that there is no information before it to suggest that second named applicant meets the primary criteria for the grant of the visa. The second named applicant applied for the visa because she was a member of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the second named applicant.

    Conclusion

18. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Ian Berry
    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.