[2003] MRTA 6339

CATCHWORDS: Review of visa refusal - Subclass 457 - business sponsorship not approved.

DECISION: The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.

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). Lin Wei Xin (the visa applicant), a national of the People's Republic of China, born on 30 June 1973, applied for a Temporary Business Entry (Class UC) visa on 28 February 2003. The delegate's decision to refuse to grant the visa was made on 28 March 2003.

2. The visa applicant lodged a valid application for review to the Tribunal on 3 April 2003. 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 a standard business sponsor. However, the application for approval as a business sponsor made by Hengrun International Trading Co. was refused in a separate decision.

7. There is no application for review before the Tribunal in respect of the decision not to approve the proposed employer as a business sponsor. Such decisions are reviewable by the Tribunal but only if a valid application for review is made by the proposed employer (see sections 338 and 347 of the Act and regulation 4.02 of the Regulations). The time limit for seeking such a review appears to have expired.

8. On 17 July 2003, the Tribunal wrote to the visa applicant inviting him to attend a hearing on 25 August 2003. At the hearing, the visa applicant was accompanied by his migration agent, Mr Gustavo Smith, who confirmed that the required documentation was not available to enable a further sponsorship application to be lodged in relation to the visa applicant.

9. The Tribunal finds that the visa applicant's proposed employer has not been approved as a business sponsor. The Tribunal finds that the visa applicant does not meet the criteria for a Subclass 456 visa, or the criteria for a Subclass 457 visa. The Tribunal must therefore affirm the decision under review.

10. The Tribunal affirms the decision under review, finding that the visa applicant is not entitled to the grant of a Temporary Business Entry (Class UC) visa.