1419907 (Migration)

[2015] AATA 3194

1419907 (Migration) [2015] AATA 3194 (17 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Daniel Terrano Turla

CASE NUMBER:  1419907

DIBP REFERENCE(S):  BCC2014/2258694

MEMBER:Marten Kennedy

DATE:17 July 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(eb) of Schedule 2 to the Regulations.

Statement made on 17 July 2015 at 12:17pm

STATEMENT OF DECISION AND REASONS

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).  The visa applicant applied for the visa on 9 September 2014.

2. 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). 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.

3. The delegate refused to grant the visa on 27 November 2014 on the basis that neither cl.457.223(4)(ea), (eb) nor (ec) were met because the applicant had not demonstrated English language proficiency in the alternative ways provided for.

   CONSIDERATION

   English language proficiency

4. 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.

5. It requires that if the applicant is not an exempt applicant as described in IMMI 15/028; 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 must have achieved in a single attempt a test score specified in that instrument in the specified time.  In this regard, IMMI 15/028 specifies (relevantly) a score of at least 4.5 in each of the four test components and an overall band score of 5.0 in an IELTS test within the period of three years from the date of the visa application.

6. I find on the basis of the Departmental records, and for the same reasons as identified by the delegate, that :

   ·the applicant is not an ‘exempt’ applicant,

   ·the applicant is not being paid a salary above that specified in the instrument; and

   ·the language requirements in cl.457.223(4)(ea)(i) or (ii) do not apply to the applicant’s nominated occupation of Business Machine Mechanic.

7. As to whether the applicant has achieved in a single attempt the test score specified in IMMI 15/028, I received on 16 July 2015 a copy of an IELTS test report form indicating that on 27 June 2015 (a single attempt), the applicant achieved the requisite score.  I find that :

   ·the applicant achieved a score of at least 4.5 in each of the four test components;

   ·the applicant achieved an overall band score of 5.0;

   ·the test was undertaken within three years of the date of the visa application.

8. It follows that I find that the applicant satisfies cl.457.223(4)(eb), and will remit the matter to the Department on that basis.

   DECISION

   The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

   ·cl.457.223(4)(eb) of Schedule 2 to the Regulations.

   Marten Kennedy
   Member