Zhang (Migration)

[2019] AATA 5080

Zhang (Migration) [2019] AATA 5080 (19 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wei Zhang
Ms Xiaoyu Yu

CASE NUMBER:  1721267

DIBP REFERENCE(S):  BCC2017/846722

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          19 March 2019 at 11:38 am (QLD time)

DATE OF WRITTEN RECORD:                23 April 2019

PLACE OF DECISION:  Brisbane

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

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of approved nomination by standard business sponsor – sponsor’s nomination application refused – refusal affirmed on review – change to regulations – occupation removed from list of eligible occupations – applicants only shareholders and directors of nominator company, and first applicant indispensable to operations of company – recent birth of child – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A

Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)(a), 457.321

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 7 September 2017 to refuse to grant the applicants Temporary Business Entry (Class UC) Subclass 457 visas under the Migration Act 1958 (‘the Act’).

2. At the hearing on 19 March 2019, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The Tribunal reference is 1721267. The first named applicant is Mr Wei Zhang. He is the primary visa applicant. The second named applicant is his wife, Ms Xiaoyu Yu, who is the secondary visa applicant. The applicants applied for the visas on 3 March 2017. The applicants also have a child together who was born recently in Australia in March 2019 but as yet the child is unnamed.

4. This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (‘the Act’).

5. 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 Clause 457.223 which requires the first-named applicant to satisfy one of the alternative streams for the visa. One of these streams is contained in Clause 457.223(4). In the present case specific claims have been made against Clause 457.223(4), which applies to sponsorship for employment in an occupation by standard business sponsor. No claims have been made in respect of the other alternative streams in Clause 457.223.

6. The delegate refused to grant the visas on 7 September 2017 on the basis that Clause 457.223(4)(a) was not met because the first-named applicant was not the subject of an approved nomination as required. On 11 September 2017, the first-named applicant (hereafter referred to as ‘the applicant’) applied to the Tribunal for review of the visa refusal decision. A copy of the visa refusal decision was provided to the Tribunal by the applicant. 

7. The applicant appeared before the Tribunal on 19 March 2019 to give evidence and present arguments. He confirmed to the Tribunal that no other person was attending the review hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant meets the requirements of Clause 457.223(4)(a). 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. The Tribunal notes that it wrote to the applicant by correspondence dated 6 February 2019, pursuant to section 359A of the Act, inviting him to comment on or respond to the following information in writing:

   The application for approval of the nominated position made by W & Y Property Management Pty Ltd as the trustee for W & Y Family Trust (known as “the nominator”) was refused by a delegate of the Minister for Immigration. The nominator sought a review of that decision but it was recently affirmed by the Tribunal. This means that the nominator’s application for the nominated position has not been approved.

10. On 20 February 2019, the applicant, through his representative, requested an extension of time to respond to that invitation. The Tribunal duly granted an extension of time to the applicant until 11 am on Tuesday 19 March 2019 to respond. The Tribunal accepts that the applicant did respond to the Section 359A invitation in the extension of time request, albeit in a limited form.

11. During the review hearing, the applicant was invited to provide evidence in support of his application for review including with regard to whether he wished to elaborate on the information raised with him within the section 359A correspondence. The applicant’s evidence to the Tribunal at the review hearing may be summarised as follows. The applicant advised that his first Subclass 457 visa was granted in 2015. He explained that on 3 March 2017, his company lodged a nomination application in order to renew his visa. He advised that the company’s sponsorship was approved around that time, however, the nomination application and the Subclass 457 visa application, were both still pending. According to the applicant, these were also lodged on 3 March 2017.

12. The applicant informed the Tribunal that the company nomination was refused pursuant to regulation 2.72(10)(aa) of the Regulations as the occupation of Property Manager was removed from the list of eligible occupations after the time that both the nomination application and the Subclass 457 visa applications were made. The applicant informed the Tribunal that his company was compliant with all of the necessary requirements at the time of the application, however, the new list of occupations came in after the time of application for the nomination and for the Subclass 457 visa and he contended that the new law should not apply to him.

13. The applicant confirmed to the Tribunal that he and his wife were the only owners of the shares in the nominator company and that he and his wife are the only directors of the nominator company, there having been a previous director who has since resigned. The applicant agreed that the company is sponsoring him and his wife. The applicant agreed that his occupation is no longer on the list of eligible occupations for the purposes of the visa. The applicant contended that he should be granted the Subclass 457 visa as he is indispensable to the company and he says that it is unfair that the Subclass 457 visa application is affected by the change in the law.

14. The Tribunal raised with the applicant that it must apply the law to the facts of this case and it appeared from the law that his occupation was no longer on the list of eligible occupations, inviting his comment. The applicant responded that the law should not apply to him in this case because it changed after the time of application and he also indicated that it does not apply to other forms of permanent visa.

15. The applicant also advised the Tribunal that he is a founding member of the company and he is indispensable to the operations of the company. He cited that he is working as an onsite manager in a residential complex. He advised that his business will collapse if the visa is refused. The applicant also advised that he and his wife, the second-named applicant, recently had a baby girl who was born in Brisbane in early March 2019. That child does not as yet have a birth certificate and is not as yet named. The applicant also confirmed that the Department of Home Affairs has not been advised of the birth of the child. The applicant needs to attend to the aforementioned matters.

16. The applicant was invited by the Tribunal to provide any further evidence that he wished to give in his case and he confirmed to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing. 

17. The Tribunal has very carefully considered all of the evidence in this case. The Tribunal finds that at the time of its decision, there is no evidence of an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased. Accordingly, the requirements of Clause 457.223(4)(a) are not met. 

18. For the reasons expressed, 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 Clause 457.223 and there is no evidence that the applicant would be able to satisfy the specific criteria for those streams. 

19. In relation to the second-named applicant, the Tribunal notes that Clause 457.321 requires that secondary visa applicants are members of the family unit of a person, being the primary visa applicant who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. The aforementioned information also applies to the unnamed child of the applicant and the second‑named applicant.

20. Given that the applicant has not met the requirements for the grant of a Subclass 457 visa and is not the holder of a Subclass 457 visa, it follows that the second-named applicant does not satisfy the requirements of Clause 457.321. The Tribunal so finds. The aforementioned information also applies to the unnamed child of the applicant and the second-named applicant.

    DECISION

21. The Tribunal, constituted by Member Chapman, affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    K. Chapman
    Member