1503399 (Migration)
[2016] AATA 3257
•16 February 2016
1503399 (Migration) [2016] AATA 3257 (16 February 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Chaisiri Lanchanthuek
CASE NUMBER: 1503399
DIBP REFERENCE(S): BCC2014/2269935
MEMBER:Mary-Ann Cooper
DATE:16 February 2016
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 16 February 2016 at 9:06am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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 10 September 2014.
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.
The delegate refused to grant the visa on 16 February 2015 on the basis that cl.457.223(4) (eb) was not met because the applicant did not have the requisite English language competency.
The applicant appeared before the Tribunal on 6 July 2015 to give evidence and present arguments. The Tribunal also received oral evidence from his nominating employer.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb).
English language proficiency
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.
They require either that:
·if the applicant would be required to hold a licence, registration or membership that is mandatory to perform the nominated occupation and to do so would need to have achieved a better test score than that specified in the relevant instrument, then he or she must have proficiency of at least the standard required for the grant (however described) of the licence, registration or membership : cl.457.223(4)(ea).
·if the applicant is not an exempt applicant as described in IMMI 14/009; 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: cl.457.223(4)(eb) or
·if the Minister requires the applicant to demonstrate his or her English language proficiency, the applicant does so in the manner specified by the Minister: cl.457.223(4)(ec).
Does cl.457.223(4)(ea) apply?
This provision applies only where an applicant would be required to hold a mandatory licence, registration or membership to perform the nominated occupation and which requires a particular level of English. The applicant’s nominated occupation is Cook. There is no information before the Tribunal to suggest that to undertake the occupation of Cook the applicant would be required to hold a mandatory licence, registration or membership. As a result, cl.457.223(4)(ea) does not apply to the applicant.
Does cl.457.223(4)(eb) apply?
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.
Having regard to the relevant exemptions, based on the material on the Department’s file, the Tribunal finds that the applicant is the holder of a Thai passport, and therefore he is not an ‘exempt applicant’ under subitem 7(a) of IMMI 15/028.
There is no evidence to suggest that he has completed at least 5 years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English. At the hearing the applicant submitted that he had completed 2 years fulltime study in Certificate III and Diploma courses in Australia, in which the instruction had been English and he had spent 2.5 years studying English language. The Tribunal observed that there was no supporting evidence in this regard, but, in any event, the applicant acknowledged it did not amount to 5 years study. Accordingly, the Tribunal finds that the applicant is not an ‘exempt applicant’ under subitem 7(b) of IMMI 15/028.
As confirmed by the applicant at the hearing, he has not been nominated in relation to an activity or occupation that will be performed at a diplomatic or consular mission of another country, or an office of the authorities of Taiwan located in Australia. Consequently, the Tribunal finds that he is not an ‘exempt applicant’ under subitem 7(c) of IMMI 15/028.
Items 7(d) and (e) apply to applicants who lodged their most recent 457 visa application before 1 July 2013. The applicant applied for the visa on 10 September 2014 and is therefore not in a class of persons specified in Item 7(d) or Item 7(e).
The Tribunal finds that none of the exemptions in IMMI 15/028 apply to the applicant and it therefore finds that he is not an exempt applicant under cl.457.223(11), for the purposes of cl.457.223(4)(eb)(i).
Does cl.457.223(6) apply to the applicant?
Clause cl.457.223(4)(eb)(ii) requires that subclause (6) does not apply to the applicant. For the purposes of subclause 457.223(6)(a), the relevant instrument is also IMMI 15/028 and it specifies the annual salary to be AUD $96,400 per annum. The evidence before the Tribunal, and confirmed by the applicant at the hearing, is that the visa applicant’s proposed base rate of pay in relation to the nominated occupation is below AUD $96,400. Therefore the Tribunal finds that subclause 457.223(6) does not apply to the applicant. It follows that the Tribunal finds that the requirements of subparagraph 457.223(4)(eb)(ii) are also met.
As the applicant is not an “exempt applicant” for the purposes of subparagraph 457.223(4)(eb)(i), and as subclause 457.223(6) does not apply to him for the purposes of subparagraph 457.223(4)(eb)(ii), and given the Tribunal’s earlier findings that neither subparagraph 457.223(4)(ea)(i) or (ii) applies in this case (cl.457.223(4)(eb)(iii)), the applicant must meet the requirements of subparagraphs 457.223(4)(eb)(iv) and (v)).
Has the applicant achieved the required test score in a language test as required by cl.457.223(eb)(iv) and cl.457.223(eb)(v)?
The relevant instrument for the purposes of subparagraphs 457.223(4)(eb)(iv) and (v) is again IMMI 15/028. It specifies that the applicant must have undertaken a specified language test 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. In addition, this instrument specifies the relevant period for the purposes of paragraph 457.223(4)(eb) to be the period of three years from the date of the visa application.
The delegate’s decision, a copy of which was provided with the review application, records that the applicant did not provide any English language test results. The Tribunal noted that he had provided information to the Department of scheduled IELTS tests and inquired as to his results. The applicant responded that he had not achieved the requisite scores in these tests but he did not supply copies of his results. He did provide documents indicating he had enrolled for 3 TOEFL tests in the coming months. His employer gave evidence that the applicant had made active efforts to improve his English and that it would have a major adverse impact on his business if he had to replace him. He said it was very hard in regional Victoria to find a good chef with knowledge of Asian cuisine and that the applicant was a good worker and an “amazing” chef. In the circumstances the Tribunal allowed one month, until 4 August 2015, for the results of the first scheduled test.
In relation to a TOEFL test, IMMI 15/028 requires a total band score of 36 and a minimum score of 3 for listening and reading and 12 for speaking and writing. On 3rd August the applicant’s representative wrote to the Tribunal providing the results of the applicant’s test of 12 July 2015 which demonstrated he did not achieve the required scores. He received 7 for reading, 3 for Listening, 11 for Speaking and 9 for Writing and an overall score of 30. The representative advised that he was enrolled for two further tests in 30/8/2015 and 13/9/2015 and an extension of time was requested for the provision of the results. The Tribunal allowed until 25 September 2015.
On 25 September 2015 the applicant’s representative advised that the applicant was still waiting for the results of his test and requested another extension for a month. The Tribunal responded on 30 September 2015 and requested a copy of the applicant’s test results for the August and September tests. No response was received and on 4 November 2015 the Tribunal wrote again to the applicant’s representative noting the absence of any response and advising that it would allow until 13 November 2015 for the further information or submissions in respect of the application.
On 13 November 2015 the applicant’s representative responded, claiming that the applicant still did not have his results from his 30 August and 13 September tests. On 18 November 2015 the Tribunal replied to the email advising that it had taken it as a request for an extension of time to provide the information and allowed until 15 December 2015 for the supply of the relevant tests results. On 15 December 2015 the applicant’s representative responded by email advising that the applicant had not achieved the required tests results and seeking a further extension of time. On 18 December 2015 the Tribunal contacted the representative by telephone and advised that on provision of the applicant’s test results for 30/8 and 13/9, it would determine whether to allow any further time for the provision of the information. The Tribunal’s case note records that the representative was advised that if those results were not received by 5 January 2016 the Tribunal would proceed to determine the matter on the material before it. It further records that the representative said he understood the requirement.
As at today’s date no further communication has been received from the applicant or his representative. The Tribunal considers the applicant has had sufficient time to provide information demonstrating that he meets the requirements of cl.457.223(4)(eb).
The Tribunal has taken into account the contention of the applicant’s representative at the hearing that the relevant instrument, IMMI 15/028, specifies the period of three years from the date of the visa application for the purposes of cl.457.223(4)(eb), and therefore the Tribunal should allow those 3 years for the applicant to achieve the required results before making its decision. The Tribunal does not consider that the instrument, properly construed, provides such an ‘entitlement’ to the applicant. That is, this period is not a three year window given to applicants in full so that they can fulfil the English language requirements; rather, it is a time limit which puts a cap on time within which an applicant must satisfy them. This is a time of decision requirement and in this context, providing the applicant has had a fair and reasonable opportunity to provide the required information, it is open to a decision-maker to find that it is not met at that time.
The Tribunal has also had regard to the Departmental policy guidelines in this respect which provide as follows:
Period in which to provide an English test result
If an applicant who is required to demonstrate a level of English language proficiency has not provided any evidence of their English language proficiency, officers should request that the applicant demonstrates their English language proficiency through an English language test, and provide them with a prescribed period (under regulation 2.15) to provide this information.
The applicant should provide a test result within the prescribed period or, if this is not practicable, proof that they have applied to sit the next available test. Only in extreme circumstances would it be considered appropriate to allow the applicant to enrol in a test other than the next available test. The circumstances in which this could be accepted are, for example, where civil unrest or a death/serious illness in the immediate family of the applicant prevents the applicant’s attendance at the next available test. If there are doubts as to the genuineness of such claims, it would be appropriate to finalise the application on the basis of information to hand. Evidence of an IELTS test result is usually available through the IELTS online verification system two weeks after a test sitting.
Assessing the test result
If the applicant does not achieve the required result, the applicant does not meet the English language requirement and the application would not meet
457.223(4)(ea) or (eb). It is not appropriate to allow the applicant to wait for review, re-sit the test or provide an alternate demonstration[1].[1] PAM - Sch2 Visa 457 - Temporary Work (Skilled) - Nominations and visa applications
The Tribunal observes that, whilst it may be guided by policy, it is not bound to follow it.[2] Whether or not an applicant has the required level of English language proficiency will be a question of fact to be determined in the individual case and, where appropriate, to the extent that policy is inconsistent with the Regulations, the Tribunal is required to depart from it. While not specifically addressing the issue in contention, the policy does not appear to support the submission of the applicant’s representative that the relevant instrument requires the decision-maker to allow 3 years for the provision of the relevant test results. The Tribunal has also taken into account the individual circumstances of the applicant.
[2] See Brennan, J. in Re Drake (No. 2) (1978-1980) 2 ALD 634
As the applicant confirmed at the hearing, he has been in Australia since 2009. It has now been almost 2 years since the visa application was made and more than 7 months since the hearing, during which period the Tribunal has allowed the applicant several additional extensions of time within which to provide evidence that he has the requisite English language competency. While the Tribunal has given weight to the evidence of the applicant’s employer regarding his value to his business and his skills as a chef, there is no indication on the evidence before the Tribunal that the applicant is any more likely to demonstrate the required English language proficiency in the next 12 months than he has in the last 7 years. In absence of any results, other than those for his July 2015 test, there is no demonstration or suggestion that the applicant has a discernable pattern of ongoing improvement in his English language proficiency. The Tribunal has had regard to the decision in the Minister for Immigration and Citizenship v Li (2013) 297 ALR 225, and considers that the facts of this case are distinguishable on the basis similar to that found in Thapaliya v Minister for Immigration insofar as there is “nothing before the MRT …. to suggest that it should have been apparent to the MRT that a satisfactory IELTS test score was just around the corner.” [2013] FCCA 456 (Emmett J, 5 June 2013) at [31]-[32].
The Tribunal further notes that it is required by s353(1) of the Act to provide …a mechanism of review that is “fair, just, economical, informal and quick.” As noted in Rahman v MIAC [2012] FMCA 334 (Raphael FM, 12 April 2012) at [10]
The Tribunal’s discretion is not totally unfettered but it is certainly open to it to conclude that after the very lengthy period of time between applying for his visa and having the merits review undertaken the applicant should have been able to provide the necessary evidence. It was entitled to consider that in order to comply with the requirement to make the decision quickly, which is as important as any of the other requirements, there would have to be an end to the continued extensions.
Having carefully considered the submissions made, and the relevant authorities, in the circumstances, and as notified to the applicant, the Tribunal has proceeded to make its decision on the material currently before it.
There is no evidence before the Tribunal, at the time of its decision, which demonstrates that the applicant, having undertaken a language test specified by the Minister, has achieved, within the period specified by the Minister in the instrument, in a single attempt at the test, the score specified by the Minister. On this basis the Tribunal finds that the applicant does not meet the requirements of cl.457.223(4)(eb).
Having found that the applicant does not satisfy cl.457.223(4)(eb), it is not necessary for the Tribunal to consider cl.457.223(4)(ec).
CONCLUSION
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
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Mary-Ann Cooper
MemberATTACHMENT - 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.
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