[Home] [Databases] [WorldLII] [Search] [Feedback] Migration Review Tribunal of Australia

You are here: 

0805654 [2009] MRTA  2439  (10 November 2009)

Last Updated: 17 November 2009

0805654  [2009] MRTA 2439  (10 November 2009)

DECISION RECORD

APPLICANT: Mr Junjie Feng

MRT CASE NUMBER: 0805654

DIAC REFERENCE(S): CLF2008/132901

TRIBUNAL MEMBER: T Delofski

DATE: 10 November 2009

PLACE OF DECISION: Sydney

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
2. The applicant applied to the Department of Immigration and Citizenship for a Temporary Business Entry (Class UC) visa on 30 April 2008 The delegate decided to refuse to grant the visa on 6 August 2008 and notified the applicant of the decision and his review rights by letter dated 6 August 2008.
3. The delegate refused to grant the visa on the basis that the applicant did not satisfy cl.457.223(4) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have an approved sponsor.
4. The applicant applied to the Tribunal on 4 September 2008 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act and r.4.02(1A) of the Regulations. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. The Temporary Business Entry (Class UC) visa permits non-citizens with skills needed by Australian businesses to enter and work temporarily in Australia. Class UC contains two subclasses, Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 visas permit stays of up to 3 months. Subclass 457 visas permit stays of not more than 4 years, and in the case of an Independent Executive proposing to maintain an ownership interest of a business in Australia, a further stay of 2 years is permitted. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa.
7. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
8. One of the primary criteria to be satisfied at time of decision is cl.457.223. Only one of the alternative requirements in cl.457.223 must be satisfied. These are:
   • employment in Australia under a labour agreement (LA): cl.457.223(2)
   • standard business sponsorship for employment in a nominated occupation: cl.457.223(4)
   • Independent Executives proposing to maintain their ownership interest of a business in Australia (Independent Executive Further Application Onshore -IEFAO): cl.457.223(7A)
   • service sellers representing overseas companies: cl.457.223(8)
   • persons who will be engaged in diplomatic-type work and entitled to certain privileges and immunities: cl.457.223(9); and
   • for applications made on or after 1 November 2003, employment in Australia under an Invest Australia Supported Skills (IASS) agreement: cl.457.223(10).
9. The applicant in the present case has made specific claims against cl.457.223(4). No claims have been made in respect of the other alternative sub criteria to cl.457.223.
10. Clause 457.223 was substantially amended on 14 September 2009, for all visa applications not finally determined before that date, and applications made on or after that date: Migration Amendment Regulations 2009 (No.9), r.3(6). Clause 457.223(4), as it applies in the present case, provides:

Standard Business Sponsorship

(4) The applicant meets the requirements of this subclause if:

(a) either:

(i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:

(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

(B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or

(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:

(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

(B) the approval of the nomination has not ceased as provided for in regulation 2.75; and

Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).

(aa) the nominated occupation is specified in an instrument in writing for paragraph 2.72 (10) (a) that is in effect; and

(ba) if the business activities of the person who made the approved nomination include activities relating to either or both of:

(i) the recruitment of labour for supply to other unrelated businesses; and

(ii) the hiring of labour to other unrelated businesses;

either:

(iii) the occupation is undertaken in a position with a business, or an associated entity, of the person who made the approved nomination; or

(iv) the occupation is specified by the Minister in an instrument in writing for this subparagraph; 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

(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

(ea) if:

(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate a level of English language proficiency equivalent to the level of English language proficiency that is required to achieve an IELTS test score of more than 5 in each of the 4 test components of speaking, reading, writing and listening;

the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

(eb) if:

(i) the applicant is not an exempt applicant; and

(ii) subclause (6) does not apply to the applicant; and

(iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

the applicant has a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening; 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.

11. In the present case, the visa application was refused on the basis that the applicant did not meet cl.457.223(4) as in force before 14 September 2009. However, as noted above, this application must be determined by reference to cl.457.223(4) as now in force

EVIDENCE AND FINDINGS

12. The Tribunal has before it the Department’s and the Tribunal’s case files relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
13. On 18 September 2009 the Tribunal wrote to the applicant inviting him to comment on or respond to information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision that is under review. The particulars of the information were:
    • On 9 September 2009 the Tribunal made a decision to affirm the Department's refusal of an application by the applicant’s nominated sponsor, Timso Co Pty Ltd, for approval as a business sponsor.

The Tribunal advised that this information is relevant to the review because it may indicate that the applicant does not have an approved business sponsor, a requirement of cl.457.223(4) of the Regulations.

14. The Tribunal also advised that if the Tribunal did not receive the applicant’s comments or response within the period allowed or as extended, the Tribunal may make a decision on the review without taking any further action to obtain his views on the information; and that he will also lose any entitlement he might otherwise have had under the Migration Act to appear before the Tribunal to give evidence and present arguments. In the event, the applicant did not respond to the Tribunal’s letter and the Tribunal has proceeded to make a decision on the material before it.
15. Since there is no evidence on the case files that the applicant has an approved business sponsor or that the applicant is the subject of an approved business nomination, the Tribunal finds that he does not meet cl.457.223(4).
16. No claims have been made in respect of other subclauses in cl.457.223; however, the Tribunal has considered the other grounds as part of its determination of whether the applicant satisfies cl.457.223. There is no evidence that the applicant would be able to satisfy criteria in those clauses. This is because: there is no evidence of a Labour Agreement for the purposes of cl.457.223(2); the applicant has not made any claims to be conducting a business as a principal, and so does not meet the requirements of cl.457.223(7A); there is no evidence that the applicant is a service seller or a person accorded diplomatic privileges, and thus cannot satisfy cl.457.223(8) or cl.457.223(9) respectively; and there is no IASS agreement so the applicant cannot satisfy cl.457.223(10). As such, the applicant does not meet cl.457.223.
17. Given the findings made above, the Tribunal must affirm the decision under review.

DECISION

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

T Delofski
Presiding Member