WELUWANARAK (Migration)

[2018] AATA 2911

WELUWANARAK (Migration) [2018] AATA 2911 (13 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Khanchai WELUWANARAK
Mrs Thussanee SANJAK
Mr Natthakit WELUWANARAK

CASE NUMBER:  1620088

DIBP REFERENCE(S):  BCC2016/2180485

MEMBER:Denise Connolly

DATE:13 July 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2018 at 10:02am

CATCHWORDS
Migration – Temporary Business Entry (Class UC ) – Subclass 457 (Temporary Work (Skilled)) – No approved nomination – Nominated by sister for a role – Practice and procedure – Combined hearing – Nomination not approved – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359A
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 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 27 June 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 23 November 2016 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination.

5. The applicants appeared before the Tribunal on 10 May 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Requirement for an approved nomination

8. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) which require that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

9. The applicant was nominated by Suparada Weluwanarak (the applicant’s sister) to be employed as a Massage Therapist. The Department did not approve Suparada Weluwanarak’s nomination application made in respect of the applicant and accordingly the visa application was refused by the delegate. Suparada Weluwanarak applied for review of the decision not to approve the nomination.  

10. The applicant attended the hearing on 10 May 2018. It was combined with the hearing regarding the nomination refusal. The Tribunal explained that, to meet cl.457.223(4)(a), he must be the subject of an approved nomination that has not ceased. It explained that the review of the nomination refusal must be finalised before the decision in this case could be made. The Tribunal explained that it would write to him if it affirmed the decision not to approve the nomination.

11. On 22 June 2018 the Tribunal affirmed the decision not to approve the nomination.

12. On 26 June 2018 the Tribunal wrote to the applicants pursuant to s.359A of the Act, inviting the applicants to comment on or respond to, in writing, information that it considered would be the reason or part of the reason for affirming the decision under review. The information related to the Tribunal’s decision to affirm the refusal of the nomination application by Suparada Weluwanarak. The Tribunal explained this was relevant to the requirements in cl.457.223(4)(a) which requires the applicant to be the subject of an approved nomination. The response was due on 10 July 2018.

13. The applicants did not respond in writing. The applicant has not provided any evidence to confirm that he is the subject of an approved nomination that has not ceased.

14. The evidence before the Tribunal indicates that there is not an approved nomination of an occupation in respect of the applicant by a standard business sponsor that has not ceased. For these reasons the requirements of cl.457.223(4)(a) are not met by the applicant.

15. There is no evidence to suggest either of the other applicants is the subject of an approved nomination that has not ceased.

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.

    DECISION

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

    Denise Connolly
    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.