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Sapkota (Migration) [2020] AATA 4008 (21 August 2020)

Last Updated: 13 October 2020

Sapkota (Migration) [2020] AATA 4008 (21 August 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANTS: Mr Krishna Prasad Sapkota
Mrs Laxmi Aryal

CASE NUMBER: 1832837

DIBP REFERENCE(S): BCC2018/733490

MEMBER: R. Skaros

DATE: 21 August 2020

PLACE OF DECISION: Sydney

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 21 August 2020 at 1:06pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – Cook – subject of an approved nomination – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 457.223

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 13 February 2018.
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. In this case, the associated nomination was not approved and the delegate refused to grant the visa on 30 October 2015 because the first named applicant was not subject to an approved nomination as required by cl.457.223(4)(a).
5. Information before the Tribunal indicates that a subsequent 457-nomination in relation to the first named applicant was approved on 13 March 2020.
6. The Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it.
7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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), which requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.
9. As indicated above the relevant nomination in respect of the first named applicant was refused by the Department. The nominator, A.C.E (NSW) Enzoz Cucina Pty Ltd, applied to the Tribunal for review of the decision not to approve the relevant nomination. On 13 March 2020, the Tribunal set aside that decision, and substituted a decision approving the nomination.
10. On the evidence before it the Tribunal finds that the first named applicant was nominated by A.C.E (NSW) Enzoz Cucina Pty Ltd in the occupation of Cook 351411. The 457-nomination was approved on 13 March 2020. Departmental records also indicate that the sponsor, A.C.E (NSW) Enzoz Cucina Pty Ltd, was approved as a standard business sponsor from 22 May 2018 Date to 22 May 2023. The Tribunal is satisfied on the basis of this information that the nomination in respect of the first named applicant remains current.
11. Given the above, the Tribunal is satisfied that there is an approved nomination in respect of the first named applicant which has not ceased. For these reasons, the first named applicant meets the requirements of cl.457.223(4)(a).
12. Given the above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.
13. The Tribunal notes that the Department refused the application of the second named applicant on the basis that she was not a member of the family unit of a person that holds a relevant visa. On remittal of this matter, and based on the outcome of the first named applicant’s application for the visa, the Department will reconsider the second named applicant’s eligibility for the visa.

DECISION

14. 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.

R. Skaros
Senior 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.