WOODROFFE (Migration)

[2018] AATA 4141

WOODROFFE (Migration) [2018] AATA 4141 (31 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr CRAIG RAYMOND WOODROFFE
Miss WAN-CHEN TAI

CASE NUMBER:  1720226

DIBP REFERENCE(S):  BCC2015/2927246

MEMBER:Alan McMurran

DATE:31 August 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.

Statement made on 31 August 2018 at 4:07pm

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 140GB
Migration Regulations 1994 (Cth), r 2.75, 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 7 October 2015.

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 14 August 2017 on the basis that cl.457.223(4) (a) was not met as the applicant was not the subject of an approved nomination by a standard business sponsor, JCD Ideas Holdings Pty Ltd, which sponsoring employer did not have an approved nomination in place.

5. The applicants appeared before the Tribunal on 31 August 2018 to give evidence and present arguments. The Tribunal also received oral evidence from Cara Pizzata, a director of the nominator.

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 matter should be remitted for reconsideration.

   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)(a).

   Requirement for an approved nomination

9. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation under section 140GB of the Act relating to the applicant, by a standard business sponsor at the time the nomination was approved, and that the approval of the nomination has not ceased.

10. Regulation 2.75 prescribes that an approval of a nomination ceases on the earliest of 12 months after the day on which the nomination is approved.[1]

    [1] Reg 2.75 (2) (b)

    Background

11. In earlier proceedings, Tribunal case file 1517416, the Tribunal was considering an issue raised under cl. 457.223(4)(da) as to whether the applicant had the necessary skills qualification and employment background for the nominated occupation of supply and distribution manager.

12. The Tribunal subsequently determined on 21 June 2017 that the matter be remitted for reconsideration with the direction that the applicant met the requisite criteria in the subclause as to his skills, qualification and employment background.

13. The applicant then sent an email to the Department on 26 July 2017. The text of the email was as follows:

    “To whom it may concern

    With regards to application ID 1200584654 my employer’s nomination was valid at the time of my initial Visa application and has only become expired due to the duration of the appeal process. Had this been complete during the required timeframe we would not have this issue which is rather unfair given the circumstances and the fact that my nomination was approved when I first applied in 2015.

    My employer since has commenced a new nomination with TRN: EGOF6RW81Y.Subject to this being approved the employer would then meet the requirement so that my Visa can be reconsidered after the findings and decision of the appeal process.

    I request that the Department of immigration wait until the nomination has been finalised before continuing further with my Visa application so there are no further complications moving forward.”

14. The Department responded on 2 August 2017 advising that the nomination application referred to by the applicant was “incomplete and your sponsor, JCD ideas Holdings Pty Ltd has not yet lodged a new nomination application”. The applicant was requested to provide a response to the Department by 9 August 2017 and informed that if he did not provide a response as requested a decision would be made on the visa application based on the information available at the time of decision.

15. The Tribunal has had regard to the Departmental file[2] and notes there was no response from the applicant to the Department’s natural justice letter by the requested date of 9 August 2017.The Department was unable to approve the application as there was no nomination in place that had been approved under s.140 GB of the Act.

    [2] BCC 2015/2927246

16. The Department’s decision was made on 14 August 2017. The applicant lodged this review application on 1 September 2017.

17. The applicant sought assistance from a registered migration agent which appointment was registered with the Tribunal on 7 September 2017.

18. On 28 September 2017, the agent appearing made an FOI request seeking access to information on the Department’s file. The Tribunal referred the request to the Department and advised the applicant by letter on 2 October 2017.

19. The application for review was constituted to a member of the Tribunal on 9 November 2017. On 23 November 2017, the Tribunal invited the applicant to a hearing on 18 December 2017 to give evidence and present arguments relating to the issues arising in the case. The invitation was sent by the Tribunal to the applicant’s new representative. The representative responded by email on 8 December 2017 accepting the invitation to attend a hearing.

20. On 15 December 2017, the Tribunal contacted the agent representing the applicant to enquire whether the applicant would agree to the hearing being cancelled while a related nomination application from the same business sponsor, JCD Holdings Pty Ltd, was pending with the Department. The representative responded to agree that the hearing date should be cancelled. The Tribunal then wrote to the applicant on 15 December 2017 confirming that “the Member has postponed the scheduled hearing; as soon as a new hearing date is available we will write to you again.”

21. Between the dates of 15 December 2017 and 31 August 2018, the Tribunal took no further steps to determine the review, pending the outcome of the related nomination application for the sponsor, JCD ideas Holdings Pty Ltd by the Department.[3]

    [3] Departmental reference CID 67689363478; RID 1905603382

22. On 6 July 2018, the Department made a decision to refuse the nomination application by the sponsor, JCD Ideas Holdings Pty Ltd.

23. On 12 July 2018, the Tribunal wrote to the applicant under section 359A of the Act and invited the applicant to comment or respond to certain information which the Tribunal considers would, subject to the applicant’s comments or response, be the reason, or a part of the reason, for affirming the decisions under review. The Tribunal provided particulars that:

    i.there is no approved nomination by a standard business sponsor relating to an occupation relating to you as applicant;

    ii.the most recent nomination application by JC D ideas Holdings Pty Ltd was refused by the Department on 6 July 2018.

24. The applicant was requested to respond by 26 July 2018.

25. On 26 July 2018, the applicant’s representative responded and requested the review of the visa application be linked to the review of the nomination application in the Tribunal. Both matters were then listed for a combined hearing at the Tribunal on 23 August 2018. That date was further extended at the request of the review applicant to 31 August 2018.

    Findings

26. Both the applicant and the nominee attended the hearing on 31 August 2018.

27. The issue in the present case is whether the applicant meets the requirements of cl. 457.223(4)(a). The provision requires at (a) that each of the following applies:

    i.a nomination of an occupation in relation to the applicant has been approved under section 140 GB 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

28. On the information before the Tribunal, the Tribunal is satisfied that there is a nomination of an occupation in relation to which the applicant has been approved. That follows the hearing of the nomination review application on 31 August 2018, when the Tribunal made an order setting aside the decision not to approve the nomination and substituting a decision that the nomination is approved.

29. The Tribunal is further satisfied on the information before it that the nomination was made by an entity, JCD ideas Holdings Pty Ltd, which is an approved standard business sponsor. The Tribunal finds there is a sponsorship agreement in place for the period from 2 June 2018 to 1 June 2023.

30. The Tribunal finds that the approval of the nomination has not ceased as provided for in regulation 2.75.

31. For these reasons the requirements of cl.457.223 (4)(a) are met.

32. Secondary applicant

33. The Tribunal finds that the secondary applicant, Wan-Chen Tai, is a member of the family unit of a person (the primary applicant) who has satisfied the primary criteria for the Subclass 457 visa.

34. The Tribunal finds the secondary applicant is included in the primary review applicant’s application, that the applicant is in Australia, and that there is no information before the Tribunal that the applicant has not complied substantially with the conditions that apply or applied to the last of any substantive visa held by the applicant, and to any subsequent bridging visa.

35. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

36. 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.

    Alan McMurran
    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.