Fernandez (Migration) [2019] AATA 350 (25 January 2019)

Last Updated: 8 March 2019

Fernandez (Migration) [2019] AATA 350 (25 January 2019)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Ericson Fernandez
Mrs Lovella Fernandez
Mr Kyle Kelvin Fernandez
Mr Kenneth Kirby Fernandez

CASE NUMBER: 1613242

DIBP REFERENCE(S): BCC2015/3946897

MEMBER: Alison Mercer

DATE: 25 January 2019

PLACE OF DECISION: Melbourne

DECISION: The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:

• cl.457.223(4)(a) of Schedule 2 to the Regulations.

Statement made on 25 January 2019 at 5:24pm

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CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – nomination application now approved by Tribunal – decision under review remitted

LEGISLATION

Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223(4)

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 Immigration to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
2. The visa applicants applied for the visa on 19 December 2015.
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 visas on 4 August 2016 on the basis that cl.457.223(4)(a) was not met because the first named applicant (the applicant) was not the subject of an approved nomination by an approved standard business sponsor. The delegate found that the nomination by the applicant’s employer, Melbourne Tractors Pty Ltd, had been refused. The delegate also refused to grant visas to the second, third and fourth named applicants (the applicant’s wife and children) as they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 457 visa, and there was no evidence that they met the primary visa criteria in their own right.
5. The Tribunal received a review application from the applicants on 22 August 2018. It was accompanied by a copy of the delegate’s decision and an authority by which they appointed a registered migration agent to be their representative and authorised recipient for correspondence.
6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

CONSIDERATION OF CLAIMS AND EVIDENCE

Requirement for an approved nomination

7. 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.
8. There is no dispute that there was no approved nomination of the applicant at the time that the primary decision was made. However, the applicant’s employer, Melbourne Tractors Pty Ltd, sought review of that decision at the Tribunal. On 25 January 2019, the Tribunal set aside the Department’s decision to refuse to approve the nomination, and substituted a decision to approve it. Therefore, the applicant is now the subject of an approved nomination.
9. The Tribunal is further satisfied, from the Department’s records, that Melbourne Tractors Pty Ltd is an approved standard business sponsor until 2023.
10. For these reasons, the Tribunal finds that the requirements of cl.457.223(4)(a) are met.
11. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a subclass 457 visa. As the second, third and fourth named applicants applied on the basis of being members of the family unit of the named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

DECISION

12. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 457 visa:
    • cl.457.223(4)(a) of Schedule 2 to the Regulations.

Alison Mercer
Member

ATTACHMENT - CLAUSE 457.223 (EXTRACT)

457.223

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Standard business sponsorship

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(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.

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(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.

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(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.