Ye (Migration)

[2023] AATA 1400

Ye (Migration) [2023] AATA 1400 (18 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yangjing Ye

CASE NUMBER:  1835041

HOME AFFAIRS REFERENCE(S):          BCC2018/955834

MEMBER:Sheridan Lee

DATE:18 May 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 18 May 2023 at 1:56pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – Electronics Engineer – 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 applicant a Temporary Business Entry (Class UC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicant applied for the visa on 28 February 2018.

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.

4. The delegate refused to grant the visa on 27 November 2018 on the basis that cl 457.223(4)(a)(i) was not met because no nomination of an occupation in relation to the applicant had been approved.

5. The Tribunal received a review application from the applicant on 29 November 2018. It was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the departmental and Tribunal files.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. On 29 March 2023, the Tribunal wrote to the applicant pursuant to s.359A of the Act. The letter invited the applicant to provide comment on or respond to certain information. The particulars of the information were:

   ·On 27 February 2018, ANGLO PACIFIC IMPORT EXPORT PTY LTD applied to the Department to nominate the applicant for the position of ‘Electronics Engineer’ (ANZSCO 233411).

   ·On 21 September 2018, the application for approval of the nominated position made by the nominator was refused by the Department. The nominator applied to the Tribunal for merits review of that decision.

   ·On 23 July 2021, the Tribunal (differently constituted) affirmed the decision not to approve the nomination. This means that the nomination application relating to the position specified in the visa application has not been approved.

9. The letter outlined that the information was relevant to the review because cl.457.223(4)(a) requires that at the time of decision the applicant must be the subject of an approved nomination by a standard business sponsor. It was also explained that the information, if accepted and relied upon by the Tribunal, would be the reason or part of the reason for the Tribunal to affirm the decision made by the Department to refuse the grant of a subclass 457 visa.

10. The letter invited comments or a response by 12 April 2023, noting that an extension of time to respond could be requested prior to that date.

11. On 12 April 2023, the applicant responded to the invitation. The response conceded that the nomination application made by ANGLO PACIFIC IMPORT EXPORT had been refused by a delegate, and that decision had been affirmed by the Tribunal. However, the applicant alleged that the outcome was the result of political prejudice and negligence by the applicant’s previous migration agent. The applicant advised that a separate nomination was made by his employer to sponsor him for a Subclass 186 visa and that nomination was approved by the Department on 19 October 2022. The applicant highlighted that if the current visa were refused, he would lose his right to remain in Australia until his Subclass 186 visa application were processed. The applicant requested that the Tribunal adjourn the review while he sought legal advice.

12. The applicant was invited to appear before the Tribunal to give evidence and present arguments at a hearing to take place on 22 May 2023.

13. Departmental records indicate that the applicant was granted a Subclass 186 visa on 16 May 2023. That same day, the applicant advised the Tribunal that he would no longer attend the scheduled hearing. He provided consent for the Tribunal to make a decision on the available evidence.

    Requirement for an approved nomination

14. 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.

15. As the decision to refuse the nominating employer’s application was affirmed by the Tribunal on 23 July 2021, and Departmental records indicate that the applicant is not presently the subject of a nomination that has been approved under section 140GB, the Tribunal finds that the applicant does not meet the requirement in s.457.223(4)(a)(i).

16. Consequently, the requirements of cl.457.223(4)(a) are not met.

17. 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

18. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

    Sheridan Lee
    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.