ZHAO (Migration)

[2019] AATA 6447

ZHAO (Migration) [2019] AATA 6447 (20 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shengbo ZHAO

CASE NUMBER:  1722531

DIBP REFERENCE(S):  BCC2016/3712802

MEMBER:Alan McMurran

DATE:20 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 20 December 2019 at 12:34pm

CATCHWORDS
MIGRATION– Temporary Business Entry (Class UC) visa – standard business sponsor stream –Subclass 457–no approved nomination – nomination application under review affirmed – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 140GB
Migration Regulations 1994, r 2.75, cl 457.223

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 21 September 2017 for review of a decision of a delegate of the Minister for Immigration made on 20 September 2017 to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 November 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 visa on 20 September 2017 on the basis that cl.457.223(4)(a) was not met because the applicant was not the subject of a nomination of an occupation in relation to the applicant approved under section 140 GB of the Act.

5. The applicant appeared before the Tribunal on 28 November 2019 in a combined hearing with a review sought by the nominator, Austone International Trading Pty Ltd, to give evidence and present arguments. The Tribunal received oral evidence from the applicant.

6. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicant was not represented at the hearing by his registered migration agent, Mr Yifu Sun, who did not appear. The Tribunal was not made aware of any issue arising at the hearing as a result of either representation or interpretation.

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

   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)(i).

   Requirement for an approved nomination

9. 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.

10. On 22 August 2017, the Department made a decision to refuse to approve the nomination of the visa applicant for the occupation of Managing Director. On 20 September 2017, the Department made a decision to refuse the visa application on the basis there was no approved nomination.

11. On 28 November 2019, the Tribunal conducted a hearing for the review of the refused nomination application. The visa applicant attended as the representative of the nominator, but also on his own behalf as the visa applicant, whose review was conducted at the same time.

12. On 29 November 2019, the Tribunal made a decision affirming the Department’s decision not to approve the nomination, and published its reasons.

13. On 2 December 2019, the Tribunal sent a letter to the visa applicant under section 359A of the Act providing particulars that the Tribunal had affirmed the Department’s decision not to approve the nomination by the nominator for the occupation, and that it was a requirement of the Regulations that there was an approved nomination for an occupation relating to the visa applicant and which had not ceased. The applicant was requested to give comments or respond to the Tribunal by 16 December 2019.

14. The Tribunal letter stated that it would consider any response and/or request for an extension of time if requested, and subject to any reasons provided for the extension sought. It further stated that if no comment or response was received within the allowed period, the Tribunal may proceed to a decision without taking any further action to obtain the applicant’s views.

15. The Tribunal did not receive any response within the time allowed, or any request for an extension of time to delay the decision.

16. The Tribunal finds there is no further or other information that the applicant requests be considered in relation to the review of the refusal of his visa application.

17. The Tribunal finds that the applicant is not the subject of a nomination of an occupation in relation to him which has been approved under section 140GB of the Act.

18. For these reasons the requirements of cl.457.223 (4)(a) are not met.

19. 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

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

    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.