1420757 (Migration)

[2015] AATA 3181

1420757 (Migration) [2015] AATA 3181 (23 July 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Liliana Eugenia Giraldo Garcia
Mr Hector Colorado Torres

CASE NUMBER:  1420757

DIBP REFERENCE(S):  BCC2013/2154500

MEMBER:Rania Skaros

DATE:23 July 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 23 July 2015 at 1:35pm

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 20 December 2013.

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. The delegate refused to grant the visas on 1 December 2014 on the basis that cl.457.223(4)(eb) was not met because the primary applicant (the applicant) did not meet the English language proficiency requirement. 

5. The applicant appeared before the Tribunal on 19 May 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Spanish (Central and South America) and English languages.

6. The applicant provided to the Tribunal a copy of her IELTS test report for a test undertaken on 28 March 2015 in which she achieved a score of 4.0 for listening, 2.0 for reading, 4.5 for writing, 4.0 for speaking and 3.5 Overall.

7. The applicant also provided various letters of support, medical reports and a statement detailing the medical and psychological treatment she has received over the last few years and requested the Tribunal to consider her circumstances. 

8. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb).

    English language proficiency

11. 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.

12. 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 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 or she must have achieved in a single attempt a test score specified in that instrument in the specified time.

13. There is no evidence before the Tribunal to suggest, and the applicant has not claimed, that she is an exempt applicant as provided for in IMMI 15/028. Accordingly cl.457.223(11) does not apply for the purposes of cl.457.223(4)(eb)(i).

14. It was indicated in the application form and confirmed at the hearing that the applicant would be paid a base salary of $55,000 per annum. As she will not be paid a salary that is at least the level of salary specified in IMMI 15/028 ($96,400) in circumstances where it is considered the granting of the visa would be in the interests of Australia, cl.457.223(6) does not apply to the applicant for the purposes of cl.457.223(4)(eb)(ii).

15. At the hearing the applicant gave evidence that the nominated occupation is Customer Service Manager. There is no evidence before the Tribunal to suggest that in order to obtain a license, registration or membership to perform the nominated occupation, the applicant would need to demonstrate that she has undertaken a language test specified by the Minister and achieved a score better than the score specified by the Minister. The Tribunal accordingly finds that for the purposes of cl.457.223(4)(eb)(iii), at least one of subparagraphs (ea)(i) and (ii) does not apply.

16. As the applicant is not an exempt applicant, cl.457.223(6) does not apply, and cl.457.223(4)(ea)(i) and (ii) do not apply, the applicant must have undertaken a language test specified in IMMI 15/028 and achieved the specified score within the specified period, in a single attempt at the test. The specified tests are International English Language Testing System (IELTS) test, Occupational English Test (OET), Test as a Foreign Language internet-based test TOEFL iBT, Pearson Test of English Academic (PTE) and Cambridge English: Advanced test (CAE), completed on or after 1 January 2015.

17. The language test undertaken by the applicant was the IELTS. In relation to an IELTS test, the specified score is at least 4.5 for each of the four test components of speaking, reading, writing and listening and a minimum overall band score of 5.0. The specified period is the period of three years from the date of the visa application.

18. The applicant undertook the IELTS test within the specified period but did not achieve a score of at least 4.5 in each of the four test components or an overall band score of 5.0 as specified in IMMI 15/028. There is no evidence before the Tribunal to suggest that the applicant has undertaken any of the other language tests specified in the instrument.

19. Given the above, the Tribunal finds that the applicant has not 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. Accordingly, the applicant does not satisfy cl.457.223(4)(eb)(v).

20. For these reasons, the applicant does not satisfy the requirements of cl.457.223(4)(eb) and does not satisfy cl.457.223(4).

21. The Tribunal has had regard to the applicant’s request to consider her difficult circumstances and has regard to the medical reports and letters of support, and while the Tribunal is sympathetic to the applicant in the circumstances, as explained to her at the hearing, it has no discretion in this case and must make its decision in accordance with the legislative provisions.   

22. The secondary applicant claims to be a member of the applicant’s family unit. As there is no evidence to suggest that he meets the primary criteria for the grant of the visa, the Tribunal must also affirm the decision in relation to him.

23. 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.

    DECISION

24. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Rania Skaros
    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.