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0901244 [2010] MRTA  1491  (24 June 2010)

Last Updated: 2 July 2010

0901244  [2010] MRTA 1491  (24 June 2010)

DECISION RECORD

APPLICANTS: Mr Timothy Denis Johnson
Ms Michelle Anne McCarthy

MRT CASE NUMBER: 0901244

DIAC REFERENCE(S): BCC2009/107498

TRIBUNAL MEMBER: Namoi Dougall

DATE: 24 June 2010

PLACE OF DECISION: Sydney

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Temporary Business Entry (Class UC) visas under section 65 of the Migration Act 1958 (the Act).
2. The applicants applied to the Department of Immigration and Citizenship for Temporary Business Entry (Class UC) visas on 7 October 2008. The delegate decided to refuse to grant the visas on 3 February 2009 and notified the applicants of the decision and their review rights by letter dated 3 February 2009.
3. The delegate refused to grant the visas on the basis that Mr Timothy Denis Johnson, (the primary applicant) did not satisfy clause 457.223(4)(b) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the primary applicant’s proposed employer, Steven John Hanna had not been approved as a standard business sponsor.
4. The applicants applied to the Tribunal on 23 February 2009 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under section 338(2) of the Act and regulation 4.02(1A) of the Regulations. The Tribunal finds that the applicants have made a valid application for review under section 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 clause 457.223. Only one of the alternative requirements in clause 457.223 must be satisfied. Relevant to the circumstances of this review is clause 457.223(4) which relates to standard business sponsorship for employment in a nominated occupation.
9. 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), regulation 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.

10. In the present case, the visa application was refused on the basis that the applicant did not meet clause 457.223(4)(b) as in force before 14 September 2009, which required that an applicant’s proposed employer was approved as a standard business sponsor. However, clause 457.223(4)(b) was amended by legislation on 14 September 2009 and as noted above, this application must be determined by reference to clause 457.223(4) as now in force. Relevant to this review is clause 457.223(4)(a).

CLAIMS AND EVIDENCE

11. The Tribunal has the following documents:

T1 – Tribunal case file 0901244, folio 1-35.

D1 – Department case file CLF2009/107498, folio numbered 1-72.

12. As there was no hearing a summary of the evidence on the files, including from the Department’s Movement Records and Integrated Client Services Environment (ICSE) databases follows. The applicant was not represented by a registered migration agent.
13. On 24 December 2007, the applicants entered Australia on subclass 417 visas which were valid until 24 December 2008.
14. On 7 October 2008, the applicants lodged subclass 457 visa applications on the basis that the primary applicant was to be employed by his proposed employer, Steven John Hanna.
15. On 7 October 2008, Mr Hanna had lodged an application for approval as a standard business sponsor.
16. On 7 October 2008, Mr Hanna lodged an application for approval of a business nomination with the nominated occupation of Sales and Marketing Manager (ASCO code 1231-11) in relation to you.
17. On 2 February 2009, Mr Hanna’s application for approval as a standard business sponsor was refused.
18. On 2 February 2009, the business nomination of Mr Hanna for the occupation of Sales and Marketing Manager (ASCO code 1231-11) in relation to the applicant was withdrawn.
19. On 3 February 2009, the delegate refused to grant the applicants subclass 457 visas as the primary applicant’s proposed employer was not approved as a standard business sponsor.
20. On 23 February 2010, an application for review was lodged with the Tribunal.
21. On 11 May 2010, the Tribunal sent the primary applicant a letter inviting the primary applicant, pursuant to section 359A of the Act, to provide comments on information that the Tribunal considered would be the reason, or a part of the reason, for affirming the decision under review. That information was that the nomination approval in relation to the primary applicant had been withdrawn. The primary applicant did not respond to the Tribunal’s letter of 11 May 2010.
22. The primary applicant failed to provide comments within the prescribed time frame and, therefore, the Tribunal has proceeded to make a decision, without taking any further action, pursuant to section 359C of the Act.

FINDINGS AND REASONS

23. Clause 457.223(4)(a)(ii) requires that a nomination of an occupation in relation to an applicant has been approved.
24. The business nomination of the primary applicant’s proposed sponsor, Steven John Hanna was withdrawn on 2 February 2009 and there is no approved nomination of an occupation in relation to the primary applicant. Further, on 2 February 2010, Steven John Hanna’s application to be approved as a standard business sponsor was refused. Therefore, the Tribunal finds that a nomination of an occupation in relation to the primary applicant has not been approved.
25. On the above findings, the Tribunal finds that the primary applicant does not meet the criteria in clause 457.223(4)(a)(ii).
26. No claims have been made in respect of other sub criteria in clause 457.223, however, the Tribunal has considered the other grounds as part of its determination of whether the applicant satisfies clause 457.223. There is no evidence that the primary 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 clause 457.223(2); the primary applicant has not made any claims to be conducting a business as a principal, and so does not meet the requirements of clause 457.223(7A); there is no evidence that the applicant is a service seller or a person accorded diplomatic privileges, and thus cannot satisfy clause 457.223(8) or clause 457.223(9) respectively; and there is no IASS agreement so the primary applicant cannot satisfy clause 457.223(10). As such, the primary applicant does not meet clause 457.223.

CONCLUSIONS

27. Given the findings made above, the Tribunal must affirm the decision under review.

DECISION

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

Namoi Dougall
Member