1504199 (Migration)

[2016] AATA 3529

1504199 (Migration) [2016] AATA 3529 (15 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nivate Ketkaew

CASE NUMBER:  1504199

DIBP REFERENCE(S):  BCC2014/1598909

MEMBER:Antonio Dronjic

DATE:15 March 2016 at 14:40

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 15 March 2016 at 6:03pm

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 30 June 2014.

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 visa on 9 March 2015 on the basis that the applicant did not satisfy cl.457.223 (4)(eb) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant met the English language requirements.

5. The applicant applied to the Tribunal on 26 March 2015 for review of the delegate’s decisions and provided a copy of the delegate’s decision with the application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The applicant is a national of Thailand, born in July 1970. He first arrived in Australia on 7 July 2012 as a holder of a subclass 442 visa that was valid until 1 July 2014. On 30 June 2014, the applicant applied for a subclass 457 visa that is subject of the current review on the basis that he would be employed by Banana Tree Café as a Cook.

8. According to the primary decision record provided with the review application by the applicant, on 23 November 2010, the Department requested that the applicant provide evidence of his English language proficiency. The same requests were made by the department on 30 December 2014; 6 January 2015; 3 February 2015 and 5 February 2015.

9. On 5 March 2015, the applicant responded by informing the department that he did not undertake an English language test.

10. On 25 February 2016, the Tribunal wrote to the applicant advising that it had considered all the material before it relating to the application but that it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing scheduled for 15 March 2016. With the same letter, the tribunal invited the applicant to provide information that demonstrates that the applicant meets relevant English language requirement or otherwise information showing that he is not required to demonstrate English language proficiency.

11. On 11 March 2016, the applicant submitted copy of the Certificate issued by the Red Cross and submissions provided by Will Barton, the applicant’s employer, stating that the applicant has been employed at the Banana Tree Café since the 9 July 2012 until present; described the applicant’s duties; stated that the applicant’s English has not been an issue in the workplace; that they attempted to enrol the applicant in an English course only to be advised that the applicant is a holder of an occupational trainee visa and was deemed to be an international student.

12. The applicant appeared before the Tribunal via telephone conferencing on 15 March 2016 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages. The applicant was represented in relation to the review by his registered migration agent.

13. The Tribunal welcomed the applicant and explained the purpose of the hearing and the issues to be considered. In his evidence, the applicant stated that he is and has been working for a Banana Tree Café as a Cook and earns $690 per week. He stated that he did not complete at least five years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English.

14. He stated that he had undertaken an IELTS test some 8 months ago but is unable to remember the exact date or the results achieved. He did not undertake any other English language test in the past. He confirmed that he hold only passport from Thailand. He further stated that he is studying English language.

    English language proficiency

15. 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.

16. The cl.457.223(4)(eb) 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.

    Is the applicant an exempt applicant?       

17. The Tribunal has considered whether the applicant is an exempt applicant, for the purposes of cl.457.223(4)(eb)(i). Clause 457.223(11) states that in subclause (4) (of cl.457.223) ‘exempt applicant’ means an applicant who is in a class of applicants specified by the Minister in an instrument in writing for this subclause. The relevant instrument in writing is IMMI 15/028 which specifies a number of classes of applicants to be an exempt applicant. The Tribunal has considered each of these classes.

18. There is no evidence before the Tribunal that the applicant is a citizen of, and holds a valid passport issued by, the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. The applicant stated at the hearing that he holds a passport of Thailand.  Accordingly, the Tribunal finds that the applicant is not a class of applicant specified in Item 7(a) of IMMI 15/028.

19. In his evidence the applicant stated that he has not completed at least five years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English. The Tribunal finds that the applicant is not a class of applicant specified in Item 7(b) of IMMI 15/028.

20. There is no evidence that the applicant is 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. The Tribunal finds that the applicant is not 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.  The Tribunal finds that the applicant is not a class of applicant specified in Item 7(c) of IMMI 15/028.

21. The Tribunal finds that the applicant did not lodge his most recent visa application before 1 July 2013. The applicant lodged the visa application on 30 June 2014. The applicant is therefore not in a class of applicant specified in Item 7(d) of IMMI 15/028. The applicant is not in a class of applicant specified in Item 7(e) of IMMI 15/028.

22. The Tribunal finds that none of the exemptions in IMMI 15/028 apply to the applicant. The Tribunal therefore finds that the applicant is not an exempt applicant (as defined in cl.457.223(11)), for the purposes of cl.457.223(4)(eb)(i).

    Does subclause 457.223(6) apply to the applicant?

23. The applicant has claimed to the Tribunal that he is being paid $690 per week. 

24. The amount specified in IMMI 15/028 as the applicable base salary is $96,400 per annum. Accordingly, the Tribunal is not satisfied that cl.457.223(6)(a) applies to the applicant.

25. As cl.457.223(6)(a) does not apply to the applicant, it is unnecessary for the Tribunal to consider whether cl.457.223(6)(b) applies to the applicant. The Tribunal finds that cl.457.223(6)(a) does not apply and therefore cl.457.223(6) does not apply to the applicant.

26. The Tribunal is not satisfied that the applicant’s base rate of pay under the terms and conditions of employment about which the Minister was last satisfied for paragraph 2.72(10)(c), is at least the base salary of $96,400 per annum as set out in IMMI 15/028. The Tribunal finds that cl.457.223(6) does not apply to the applicant.

    Do subparagraphs 457.223(ea)(i) or (ii) apply to the applicant?

27. There is no evidence before the Tribunal that the applicant's nominated occupation of a Cook requires him to hold a licence, registration or membership that is mandatory to perform the occupation. The applicant stated in the visa application that registration or a licence is not required to work in his nominated occupation in Australia. The Tribunal finds that for the purposes of cl.457.223(4)(eb)(iii), cl.457.223(4)(ea)(i) and (ii) do not apply to the applicant.

    Has the applicant achieved a specified score in a specified language test?

28. As the applicant is not an exempt applicant, as cl.457.223(6) does not apply to the applicant, 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 of English as a Foreign Language internet-based test (TOEFL iBT), Pearson Test of English Academic (PTE) and where the test was completed on, or after 1 January 2015, Cambridge English: Advanced test (CAE).

29. There is no evidence before the Tribunal that the applicant has achieved the specified scores for any of the specified English tests. The Tribunal is not satisfied that the applicant 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.

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

31. 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 applicant would be able to satisfy the specific criteria for those streams.

    DECISION

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

    Antonio Dronjic
    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.