Wolf (Migration)

[2018] AATA 5141

Wolf (Migration) [2018] AATA 5141 (21 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ladislav Wolf
Mrs Andrea Polakova

CASE NUMBER:  1603570

HOME AFFAIRS REFERENCE:                BCC2015/1862221

MEMBER:Lilly Mojsin

DATE:21 December 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(a) of Schedule 2 to the Regulations.

·cl.457.223(4)(d) of Schedule 2 to the Regulations

STATEMENT MADE ON 21 DECEMBER 2018 AT 4:01PM

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – subclass 457 – Contract Administrator ANZSCO 511111 – first tribunal decision remitted on basis of approved nomination – second tribunal decision to assess genuineness of position – evidence reviewed – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cls 457.223(4)(a), 457.223(4)(d)

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. On 15 November 2018 the Tribunal made a decision finding that the applicant met cl.457.223(4)(a) of the Act.  The applicant’s advisor has contacted the Tribunal and submitted that the Tribunal should also have made a decision referring to cl. 457.223(4)(d). The Tribunal agrees. The Tribunal has decided to reopen that decision.

3. The visa applicants applied for the visa on 29 June 2015.

4. 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.

5. The delegate refused to grant the visas on 26 February 2016 on the basis that cl.457.223(4) was not met because the delegate was not satisfied that the position associated with the nominated occupation was genuine.

6. In reaching its decision the Tribunal did not find it necessary to invite the applicants to a hearing, as it was able to decide the review in the applicant's favour on the basis of the material before it: s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present review is whether the primary visa applicant [applicant] meets the requirements of cl.457.223(4).

8. 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.

9. Information obtained from the Department's records indicates that Effective Cleaning Pty Ltd, obtained sponsorship approval, as a standard business sponsor, from the Department on 5 April 2017 and expiring 5 April 2022.

10. On 24 September 2018 the Department approved the nomination by Effective Cleaning Pty Ltd of the nominee, Ladislav Wolf, [the applicant] for the position of Contract Administrator ANZSCO 511111.  

11. On the basis of this evidence, the Tribunal finds that a nomination of the occupation of Contract Administrator ANZSCO 511111 in relation to the applicant was approved under s.140GB of the Act on 24 September 2018 and that this nomination was made by Effective Cleaning Pty Ltd, who was approved as a Standard Business Sponsor at the time of the nomination approval.

12. The Tribunal also finds that the nomination has not ceased as provided for in r.2.75, as there is no evidence before the Tribunal to indicate that any of the circumstances, specified in r.2.75 as leading to the cessation of the nomination, have occurred.

13. The Tribunal finds that the applicant meets cl.457.223(4)(a).

14. Clause 457.223(4)(d) states:

    (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;

15. The Tribunal has had the opportunity to review the documents provided to it by the applicant that include a Position Statement, Position Description, Employment Contract, recruitment efforts information, financial reports and BAS. In light of this information the Tribunal is satisfied that the applicant meets cl.457.223(4)(d).

16. Therefore the Tribunal finds the applicant meets cl.457.223(4).

17. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria in relation to all the applicants for a Subclass 457 visa.

    DECISION

18. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(a) of Schedule 2 to the Regulations.

    ·cl.457.223(4)(d) of Schedule 2 to the Regulations

    Lilly Mojsin
    Member

    
    

19. 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.