CATCHWORDS: Review of visa refusal - Subclass 457 - outcome of separate review of business sponsorship decision

DECISION: The Tribunal remits the application made by the visa applicant for a Temporary Business Entry (Class UC) visa to the Department of Immigration and Multicultural and Indigenous Affairs. The Tribunal has made a separate decision to approve a person as a business sponsor, and it is appropriate to remit the visa application to the Department, as the issue of the nomination of a business activity is not before the Tribunal.

1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Multicultural and Indigenous Affairs (the delegate). Mr Kyung Hyun Bang (the primary visa applicant), a national of Korea, born on 25 August 1967, applied with his wife, Mrs Nan Kyung Ha, and two children, Miss Bo Young Bang and Mr Sung Jae Bang, for Temporary Business Entry (Class UC) visas on 22 October 2002. The delegate's decision to refuse to grant the visa was made on 14 November 2002.

2. The primary visa applicant lodged a valid application for review to the Tribunal on 2 December 2002. The decision is reviewable by the Tribunal and the application for review has been properly made by a person with standing to apply for review.

3. The Tribunal has the power to affirm, vary or set aside a decision to refuse to grant a visa. It also has the power to remit an application for a visa to the Department for reconsideration. Such a remittal may be accompanied by directions that a visa applicant meets one or more of the criteria for a visa. It is then a matter for the Minister or a delegate to consider any remaining criteria. A review by the Tribunal is generally limited to a consideration of whether a visa applicant meets one or more essential criteria, with the application remitted or the decision affirmed on that basis.

4. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 is not relevant as the visa applicant is seeking a visa for longer than 3 months.

5. A Subclass 457 visa can be obtained on a number of grounds. The ground on which the visa application was made was sponsorship by a business operating in Australia (other than in relation to a labour agreement or a regional headquarters agreement). No claims have been made in respect of the other grounds and the material before the Tribunal does not suggest that the visa applicant meets any of the other grounds.

6. One necessary criterion for a Subclass 457 visa on the basis of a sponsorship by a business operating in Australia is that the proposed employer is approved as a pre-qualified business sponsor or as a standard business sponsor. The application for approval as a business sponsor made by Bigshine Sydney Pty Ltd was refused by a delegate and that decision was subject to a separate review by the Tribunal (MRT case number N02/08741).

7. The Tribunal made a decision on 23 June 2003 to approve the business sponsorship. In the circumstances, the appropriate course is to remit the application for the visa to the Department. The next step is for consideration to be given to a nomination by the employer of the activity in which the employer proposes to employ the visa applicant, which is a matter not currently before the Tribunal. Such a nomination must be made and decided before the application for the visa can be considered further.

8. The Tribunal remits the application made by the visa applicant for a Temporary Business Entry (Class UC) visa to the Department of Immigration and Multicultural and Indigenous Affairs. The Tribunal has made a separate decision to approve a person as a business sponsor, and it is appropriate to remit the visa application to the Department, as the issue of the nomination of a business activity is not before the Tribunal.