1416751 (Migration)

[2015] AATA 3452

1416751 (Migration) [2015] AATA 3452 (5 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Claudio Danlag

CASE NUMBER:  1416751

DIBP REFERENCE(S):  BCC2011/65874

MEMBER:Adrian Ho

DATE:5 October 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

Statement made on 05 October 2015 at 5:55pm

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 7 October 2009.

3. At the time the visa application was lodged, Class UC contained the following subclasses: Subclass 456 and Subclass 457. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa. 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 visa on 7 October 2014 on the basis that cl.457.223(4)(eb) was not met (the criterion).

5. The tribunal sent to the applicant a written request for information under s.359(2) which explained the requirements of the criterion in detail and delineated the information that was sought by the tribunal.

6. The request included the following:

   Your application was refused by a delegate who determined that you did not possess the requisite English language ability as required by clause 457.223(4)(eb)

   Under the terms of transitional provisions, Schedule 2, cl.457.223(4)(eb) applies to applications made but not finally determined on 22 March 2014 as well as applications made on and after that date. It states:

   (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:

   (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;

   The requirement for a specified English score only applies if you are not:

   •    The subject of a mandatory licencing, registration or membership requirement with higher specified English language proficiency standards (cl.457.223(4)(ea); or

   •    The subject of an exemption relating to high base salary of at least $96,400 (cl.457.223(6));

   •    in a class of applicants as specified in an instrument in writing (IMMI 15/028 made for the purposes of cl.457.223(11)).

   You may be an “exempt applicant” for the purposes of cl.457.223(11) if your circumstances fall within Item 7 of IMMI 15/028.  These classes of ‘exempt applicant’ for cl.457.223(11) include:

   •    certain passport holders;

   •    certain persons who have completed at least 5 consecutive years full-time secondary or higher study in were instruction was delivered in English;

   •    certain diplomatic or consular employees; and

   •    certain applicants who lodged their visa applications before 1 July 2013 and have nominated certain kinds of occupation.

   There is presently no evidence before the Tribunal that any of the “exemptions” in cl.457.223(4)(ea), cl.457.223(6) or cl.457.223(11) apply in your case.

   If no “exemption” applies to you, you will be required under cl.457.223(4)(eb) to undertake a specified English language tests and achieve the required scores in a single attempt at the test, within the period of three years from the date of the visa application.

   The following language tests are specified:

   (a) International English Language Testing System (IELTS test);
   (b) Occupational English Test (OET);
   (c) Test of English as a Foreign Language internet-based test (TOEFL iBT);
   (d) Pearson Test of English Academic (PTE);
   (e) Cambridge English: Advanced test (CAE), where the test was completed on, or after 1 January 2015.

   The following scores corresponding to each test are specified:

Test	Minimum band score	Minimum scores for English test components
		Listening	Reading	Speaking	Writing
IELTS test	Overall band score 5.0	4.5	4.5	4.5	4.5
OET	-	B	B	B	B
TOEFL iBT	Total band score 36	3	3	12	12
PTE	Overall band score 36	30	30	30	30
CAE	Overall band score 154	147	147	147	147

In addition, the tribunal requires you to demonstrate that you are currently the subject of an approved nomination made by an Australian standard business sponsor that has not ceased. 

In this regard, you should note that under Regulation 2.75, an approved nomination made by a standard business sponsor will cease after a maximum of only 12 months from the date the nomination was approved. 

Clause 457.223(4)(a) provides:

(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 for paragraph 2.72(10)(a) or (aa) that is in effect;

If an approval of any nomination you held has ceased at the time the tribunal makes its decision, or a nomination of an occupation has never been approved for you, you will not meet the criterion in cl.457.223(4)(a), which is a mandatory criterion for the visa.

The Tribunal now invites you under s.359(2) to provide the following information in writing:

1.Information which demonstrates that a nomination of an occupation made by a standard business sponsor in relation to you has been approved, and has not ceased, in accordance with cl. 457.223(4)(a); and

1.If you are identified in an approved nomination of an occupation, information about the nominated occupation including:

a.the name of the occupation,

b.the 6-digit ANZSCO or other code applicable,

c.details about your proposed employer,

d.your salary and base rate of pay,

e.a description of the position and its tasks and duties,

f.your contract of employment signed by you and your employer, and

2.Information which demonstrates that:

a.You have achieved the specified set of scores in a specified language test that you undertook no later than 3 years after the date you applied for the visa; or

b.You are “exempted” from the requirement to demonstrate that you have achieved a specified set of scores in a specified language test because at least one of cl.457.223(4)(ea), cl.457.223(6) or cl.457.223(11) applies to you.

1. The applicant has not provided either item of information requested under points 2a and 2b of the tribunal’s s.359(2) invitation above, within the prescribed time limit, or to date, and as a consequence the tribunal lost the power to invite the applicant to a hearing.

2. Mindful that the applicant had lost an entitlement to appear at a hearing, the tribunal wrote to the applicant in the following terms and provided the applicant with further time to submit evidence and make submissions:

   LOSS OF HEARING RIGHT – MR CLAUDIO DANLAG

   I am writing in relation to the application for review made by you in respect of a decision to refuse to grant a Temporary Business Entry (Class UC) visa.

   On 16 June 2015, the Tribunal wrote to you in accordance with s.359(2) of the Migration Act, requesting information in regard to specific criteria concerning your application for review of a decision not to grant you a Subclass 457 visa.

   The Tribunal’s correspondence explained that if you did not provide the information within the prescribed period, or a period as extended, you would lose your right to present evidence and arguments at a Tribunal hearing.

   The Tribunal considers that you have not provided all of the information requested by the Tribunal within the prescribed period or within a period as extended.

   You were requested to provide both information demonstrating that you are the subject of an approved nomination and information demonstrating that you have achieved a specified set of scores in a specified English language test (English test results), or information demonstrating that you do not need to provide English test results (English test exemption).

   You have provided the information in relation to an approved nomination. You have not provided the information in relation to English test results or English test exemptions.

   The Tribunal has no power under s.359B(4) to now extend the time for you to provide the information: Yang v MIAC [2010] FMCA 890 (Lucev FM, 17 November 2010) at [32].

   In these circumstances, s.359C applies and pursuant to s.360(3) you are not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if you have no entitlement to a hearing, the Tribunal has no power to permit you to appear at a hearing: Hasran v MIAC [2010] FCAFC 40.

   The Tribunal will now accordingly proceed to finalise your application for review.

   The Tribunal will defer making a decision until 24 August 2015 to allow you, if you wish, to make further submissions or provide further evidence.

3. The applicant was represented in relation to the review by his registered migration agent.

4. For the following reasons, the Tribunal has concluded that decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

5. The English language requirements for this visa are set out in cl.457.223(4)(ea), (eb), and (ec). They differ depending on the applicant’s circumstances. In the present case cl.457.223(4)(eb) is relevant. It requires that:

   ·if the applicant is not an exempt applicant as described in the relevant instrument; and is not a person who will be paid at least a level of salary specified in that instrument in circumstances where it is considered the granting of the visa would be in the interests of Australia; and the language requirements in cl.457.223(4)(ea)(i) or (ii) do not apply; then he or she must have achieved in a single attempt a test score specified in that instrument in the specified time.

6. The applicant conceded in writing to the tribunal that he had not achieved the minimum specified scores in a specified English language test (laid out above).

7. Having been given more time to submit evidence and make arguments, the applicant sought and obtained a new nomination which was approved by the Department with a base salary of $96400.

8. This is more than double the base salary originally proposed of $45230 (DIBP file f.9).

9. He asserted that this meant that he was exempt from having to undertake an English language test.

   The interests of Australia and cl.457.223(6)

10. The tribunal invited the parties to make submissions as to whether the grant of the Subclass 457 would be in the interests of Australia, as required by cl.457.223(6)(b). 

11. The tribunal’s invitation contained the following:

    The Tribunal acknowledges your letter of 21 August 2015 and your request for the Tribunal to delay a decision in this matter.

    On the assumption that you seek to satisfy cl.457.223(6) by raising the nominee, Mr Claudio Danlag's base salary to $96,400 per annum in a new nomination application to the Minister, the Tribunal draws your attention to cl.457.223(6)(b) which provides that "the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia".

    The Tribunal suggests that regardless of whether a further nomination is approved with a base salary of $96,400 per annum, if cl.457.223(6)(b) is not met, cl.457.223(6) will not be met as a whole.

    To allow you the time and opportunity to submit any evidence or submissions which you feel are relevant to the question of whether granting a Subclass 457 visa to Mr Danlag would be in the interests of Australia, the Tribunal undertakes that it will not make a decision before 28 August 2015

12. The applicant, through his representation, submitted a detailed written submission which asserts that the grant of the Subclass 457 would be in the interests of Australia because:

    a.There is a shortage of persons in Australia in the nominated occupation of Stonemason;

    b.The visa applicant is crucial to the Australian sponsoring business which will suffer tremendously if he has to leave the business;

    c.Despite not being able to demonstrate the required English language proficiency, the visa applicant’s level of English is adequate for him to perform his role proficiently and safely.

    Department policy

13. The tribunal considers that the Department’s written policy (provided by the applicant) is of little assistance in determining what might be in the interests of Australia.  The policy merely observes that adverse information known about an applicant may be one consideration.  No such adverse information is extant.

    Raising of the nominated salary

14. When the parties realised the applicant would likely not meet the visa criteria by demonstrating English language proficiency through sitting a specified English test, the salary of the applicant was more than doubled, quite clearly, for the purposes of engaging cl.457.223(6).

15. Some doubt is warranted where throughout the visa application and tribunal review process, up until that time, all parties appeared content with a base salary of $45230 (DIBP file f.9).  On the evidence, the salary was more than doubled in order to get around part of a criterion which it appeared the applicant would not meet.  Given that all parties appeared content with a salary around $45000, that would appear to be a more reliable indication of the true market value of the applicant’s labour and skills.  This raises a significant question as to whether he will in fact be paid the new base salary of $96,400 per annum in the most recently approved nomination.

    Shortage of stonemasons

16. Based on Department of Employment evidence submitted by the parties, the tribunal accepts there is a shortage of stonemasons in the economy. 

17. This is reflected in the fact that Stonemason remains on the Skill Occupation List (IMMI 15/092). 

18. That in turn means that the Stonemason occupation is a relevant specified occupation for a range of temporary and permanent visas, including the present Subclass 457 visa.

19. That the occupation is appropriately specified is therefore a threshold requirement for both the approval of the nomination and the grant of the visa: r.2.72(10) and cl.457.223(4).

20. That is, the nomination and visa scheme recognise that there is a shortage of stonemasons, which is why the occupation is relevant to this subclass of visa.

21. If a shortage of persons skilled in the occupation were sufficient to render the grant of the visa in the interests of the country of Australia, there would be no additional need to include that as a requirement of cl.457.223(6), where the applicant met all of the other requirements for the visa.

22. Therefore the tribunal is not persuaded that a shortage of stonemasons in the economy means that the grant of the visa to a stonemason is in the interests of Australia.

    Applicant’s importance to the sponsoring Australian business and its clients

23. The tribunal accepts the applicant is crucially valued by the business, and the business and potentially its Australian clients, will likely suffer loss if he is not granted the visa. 

24. Ordinarily, a business will not employ a skilled person without a need for those skills.  The loss of a skilled employee, where there is a need for those skills, is a loss to the business.  The tribunal accepts that retention of the applicant is squarely in the interests of the Australian business sponsoring the applicant. 

25. However, the tribunal has more difficulty concluding that the retention of the applicant is in the interests of Australia, or its economy. 

26. If it were the intention of the Migration Act and Regulations to acknowledge that it is in the interests of Australia to retain or place non-citizens in positions where there is a genuine need for the skills required by an employee in a position (cl.457.223(4)(d)) where the employee has the necessary skills (.cl.457.223(4)(da) and (e)) in an occupation where there is a skills shortage (manifested by specification on the Skill Occupation List), there would be no further need to require in cl.457.223(6) that the grant of the visa is in the interests of Australia.

27. That is, if all of the criteria other than cl.457.223(6) are met, it must already be the case that the sponsoring business has a need for skills which are scarce in the labour force and is in need of the skills of the non-resident visa applicant, and by extension, would suffer loss for not having the visa applicant as an employee. 

28. That is the premise of the visa scheme.  It does not demonstrate that granting the visa is in the interests of Australia.   

    Lack of English language proficiency

29. The requirement for the applicant to demonstrate a level of English language proficiency is a mandatory requirement for many visas. 

30. The parties assert that the applicant is able to carry out his tasks proficiently and safely. 

31. Apart from the many situations where the use of English is important in a place of business in Australia, a person who lacks a minimum level of English language proficiency may present a hazard or endanger themselves or others in the workplace, particularly in the event of a workplace safety emergency.

    Characterisation of Clause 457.223(6)

32. The tribunal considers that the intention of Clause 457.223(6) is that despite the potential negative consequences of employing a non-citizen who does not have a minimum level of English language proficiency, the importance of the person’s role (manifested in the higher salary level specified in cl.457.223(6)(a)) and its value to Australia, are such that an exception should be created to the need to demonstrate a minimum level of English language proficiency and the visa should be granted despite that proficiency being lacking.

33. On the evidence, the parties have not demonstrated that the granting of the visa has a sufficient impact on the interests of Australia such that Clause 457.223(6) should apply to exempt the visa applicant from demonstrating his English language proficiency through satisfying cl.457.223(4)(eb)(iv) and (v).

    Conclusion

34. Taking all of the arguments of the parties individually and cumulatively the tribunal is not satisfied that the grant of the visa to the applicant is in the interests of Australia. 

35. Therefore Clause 457.223(6) does not apply.

    Clause 457.223(4)(ea) and Clause 457.223(11)

36. The applicant was invited under s.359(2) to provide information demonstrating that the applicant did not need to satisfy cl.457.223(4)(eb)(iv) and (v).

37. No relevant information was provided.

38. On the evidence the tribunal finds that the applicant is not required to hold a licence, registration or membership that is mandatory to perform the occupation nominated where to obtain the licence, registration or membership, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister (as laid out above) and achieved a score that is better than the score specified by the Minister for that test (as laid out above).  Neither cl.457.223(4)(ea)(i) or (ii) applies.

1. On the evidence the tribunal finds that none of the circumstances prescribed (and summarised above) which would render the applicant an ‘exempt applicant’ as defined in cl.457.223(11) apply, and therefore cl.457.223(4)(eb)(i) does not apply.

   Subclauses 457.223(4)(eb)(v)

2. For the reasons above the applicant must satisfy Subclauses 457.223(4)(eb)(iv) and (v).  He has conceded in writing that he had not achieved the minimum specified scores in a specified English language test (both as laid out above). 

3. The evidence before the tribunal agrees with the concession made by the applicant.  For example, the applicant submitted an IELTS test report which shows an overall band score of 3.0 (f.28), which is well below the required specified score.

4. On the evidence, for the reasons above, the applicant does not meet cl.457.223(4)(eb)(v) and cl.457.223(4)(eb) as a whole.

5. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl.457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

6. The sponsoring employer has made quite plain that it places an extremely high value on the ability to continue to employ the visa applicant.  The tribunal accepts he is considered to be a most valuable employee.  In these circumstances, the parties may consider approaching the Minister.

   DECISION

7. The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.

   Adrian Ho
   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

   (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 that the applicant has undertaken a language test specified by the Minister under subparagraph 457.223(4)(eb)(iv) of Schedule 2 and achieved a score that is better than the score specified by the Minister under subparagraph 457.223(4)(eb)(v) of Schedule 2;

   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:

   (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.