1504377 (Migration)

[2015] AATA 3693

1504377 (Migration) [2015] AATA 3693 (17 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Heesung Yang

CASE NUMBER:  1504377

DIBP REFERENCE(S):  BCC2014/3484690

MEMBER:Rania Skaros

DATE:17 November 2015

PLACE OF DECISION:  Sydney

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 November 2015 at 3:21pm

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 18 December 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 20 March 2015 on the basis that cl.457.223(4)(eb) was not met because the applicant did not meet the English language proficiency requirement. 

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

6. On 12 November 2015 the Tribunal received a copy of an IELTS test report form for the applicant dated 28 February 2015 and in which he achieved a score of 5.0 for listening, 5.0 for reading, 5.5 for writing, 4.5 for speaking and 5.0 Overall. The Tribunal has verified these results.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   English language proficiency

9. 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.

10. 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.

11. The Tribunal is satisfied on the material before it that the applicant is not an exempt applicant under cl.457.223(11), for the purposes of cl.457.223(4)(eb)(i).

12. There is also no evidence to indicate that the applicant will be paid at least a level of salary specified in IMMI 15/028 in circumstances where it is considered the granting of the visa would be in the interests of Australia. The Tribunal accordingly finds that cl.457.223(6) does not apply to the applicant.

13. There is also no evidence before the Tribunal that in order to obtain a license, registration or membership to perform the nominated occupation, the applicant would need to demonstrate that the applicant has undertaken a language test specified by the Minister. The Tribunal accordingly 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.

14. 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.

15. 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 visa application.

16. As indicated above, the applicant provided evidence of the results from an IELTS test dated 28 February 2015 in which he scored at least 4.5 for each of the four test components and an overall band score of 5.0. The Tribunal is satisfied on this basis that the applicant has achieved the specified scores in a single attempt in an IELTS test undertaken in the period of three years from the date of visa application.

17. The Tribunal accordingly finds that the applicant satisfies the requirements of cl.457.223(4)(eb)(iv) and (v) and accordingly satisfies cl.457.223(4)(eb).

18. Given the findings above, the appropriate course is to remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

19. 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.

    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.