1508579 (Migration)

[2016] AATA 3406

1508579 (Migration) [2016] AATA 3406 (2 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Percy Eduardo Requejo Mejia
Ms Yadira Marilu Flores Monsalve
Miss Lhya Dayanara Requejo Flores

CASE NUMBER:  1508579

DIBP REFERENCE(S):  BCC2015/93200

MEMBER:Dione Dimitriadis

DATE:2 March 2016

PLACE OF DECISION:  Sydney

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

Statement made on 02 March 2016 at 4:03pm

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 applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 January 2015.

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 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 4 June 2015 on the basis that cl.457.223(4)(eb) was not met because the first named applicant (the applicant) did not meet the English language proficiency requirements.

5. The applicant appeared before the Tribunal on 16 December 2015 to give evidence and present arguments.  

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 was informed in the Tribunal’s hearing invitation that the Tribunal would consider at the hearing whether he met the English language proficiency requirements in cl.457.223(4)(eb) or whether he is an exempt applicant as provided for in IMMI 15/028. The Tribunal invited the applicant to provide documents to demonstrate his English language proficiency requirements.

8. At the hearing, the applicant provided to the Tribunal a number of documents including IELTS test results he had undertaken on 9 May 2015, two Business Activity Statements for Daya Cleaning Pty Ltd, letters from the teachers of the applicant’s child and letter dated 11 December 2015 from Atic Pty Ltd.

9. In the letter from Atic Pty Ltd, Julio Caycho stated that since Daya Cleaning Pty Ltd sponsored and nominated the applicant earlier in the year, the company has significantly improved its financial position because of new contracts. The salary of the applicant has increased to a base rate of $98,000 since January 2015. Mr Caycho stated that it is of vital importance for the business to keep operating and the role of the applicant is vital for the operation of the company, which will be able to employ more people in Australia with the increase in business. The applicant’s position as Contract Administrator is vital to grow and maintain the current contracts.

10. In the IELTS test results for a test that the applicant undertook on 9 May 2015, the applicant achieved scores of 4.5 for Speaking, 4.0 for Reading, 4.5 for Writing and 5.0 for Listening.  The overall band score was 4.5.

11. At the hearing the applicant stated that he sat for another IELTS test on 5 December 2015 and he will receive the results on 18 December 2015. He had studied for this test.

12. The applicant stated that he has his own company. He is a director of the company that has sponsored him. He will be paid $98,000. The Tribunal informed the applicant that he has provided a letter stating that his salary has increased to $98,000. The Tribunal informed the applicant that it has concerns about this evidence as it has not seen documentary evidence that he is earning $98,000, other than this letter.  

13. The Tribunal informed the applicant that it would allow until 21 December 2012 to provide English language results. The Tribunal informed the applicant that if he does not achieve the required score, he will not meet the English language proficiency requirements unless the Tribunal accepts that he is earning over $96,400 and the Tribunal considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

14. The Tribunal asked the applicant if there was anything else he wanted to say about why it is in the interest of Australia for him to be granted a Subclass 457 visa.  The applicant stated that it is also for his family. He has his partner and his daughter here. He also employs two people besides himself.

15. On 21 December 2015 the Tribunal received a request for an extension of time from the applicant who stated that he was going to request a remark of his IELTS test results. The applicant stated that his daughter is 9 years old and she has spent 7 years in Australia.  They do not wish her schooling to be interrupted or to be prejudiced by a negative decision.  The applicant stated that his daughter has not returned to Peru since the age of 2 years. It is dangerous to live in Peru.

16. The applicant provided IELTS test results undertaken on 5 December 2015 and a request dated 19 December 2015 for a remark and certificates awarded to his daughter.

17. In the IELTS test results for a test that the applicant undertook on 5 December 2015, the applicant achieved scores of 5.5 for Speaking, 4.0 for Reading, 5.0 for Writing and 4.0 for Listening.  The overall band score was 4.5.

18. The Tribunal agreed to an extension of time until 8 February 2016. Following a further request from the applicant, the Tribunal agreed to an extension of time until 1 March 2016.

19. On 1 March 2016 the Tribunal received an email from the applicant who stated that the remark did not upgrade the results and the results of the test on 5 December 2015 remained the same.

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

    English language proficiency

21. 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. 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.

    Is the applicant an exempt applicant?       

22. 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.

23. 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 in the visa application that he is a national of Peru and holds a passport of Peru. The applicant stated at the hearing that he holds a passport of Peru.  The Tribunal is not satsfied that the applicant holds a passport of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. The Tribunal finds that the applicant is not a class of applicant specified in Item 7(a) of IMMI 15/028.

24. There is no evidence that the applicant has 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 applicant stated in the visa application that he has not studied in a secondary or tertiary institution where the instruction was in English. The Tribunal is not satisfied from the evidence that the applicant has completed at least five years of full-time study at 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.

25. 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.

26. 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 9 January 2015. 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.

27. 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?

28. The applicant has claimed to the Tribunal that he is being paid $98,000 per annum since January 2015.  However, the applicant stated in the visa application that the base rate of pay is $72,000 per annum. The applicant stated at the hearing that his base rate of pay is now $98,000 per annum. He provided a letter dated 11 December 2015 from Atic Pty Ltd, his accountants, confirming that his base rate of pay was increased to $98,000 from January 2015. The Tribunal has considered the evidence from the applicant and Atic Pty Ltd. The applicant has not provided documentary evidence such as payslips from Daya Cleaning Pty Ltd or his tax assessment from the Australian Taxation office to support the claim that he is earning $98,000 per annum. The nomination that was approved by Daya Cleaning Pty Ltd in relation to the applicant specified that the annual base salary to be paid to the applicant was $72,000. This information is set out in the delegate’s decision record. It is consistent with the applicant’s visa application that he will be paid $72,000 per annum. There is no evidence before the Tribunal that a new nomination has been approved in relation to the applicant.

29. Clause 457.223(6) states:

    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.

30. The amount specified in IMMI 15/028 as the applicable base salary is $96,400 per annum. 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) was $72,000. The Tribunal is not satisfied that cl.457.223(6)(a) applies to the applicant.

31. 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.

32. 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?

33. There is no evidence before the Tribunal that the applicant's nominated occupation of Contract Administrator 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?

34. 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).

35. In relation to the IELTS test, the specified score is a minimum overall band score of 5.0 and a minimum score of 4.5 for each of the four English test components of speaking, reading, writing and listening. The specified period is the period of three years from the date of the visa application.

36. The applicant provided IELTS test results undertaken on 9 May 2015 and 5 December 2015. The applicant applied for a remark of the results of the test undertaken on 5 December 2015 but the results did not improve, according to the applicant. The applicant has not achieved the required score in an IELTS test.   

37. In the IELTS test undertaken on 5 December 2015, the applicant achieved scores of 5.5 for Speaking, 4.0 for Reading, 5.0 for Writing and 4.0 for Listening.  The overall band score was 4.5.

38. The applicant did not provide evidence to the Tribunal to demonstrate that he met the English language proficiency requirements.

39. The applicant did not achieve the specified scores of a minimum overall band score of 5.0 and a minimum score of 4.5 for each of the four English test components of speaking, reading, writing and listening in an IELTS test. There is no evidence that the applicant sat for any of the other specified tests and achieved the minimum scores as set out in IMMI 15/028.  

40. 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.

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

42. There is no evidence before the Tribunal that the other applicants meet the primary criteria for the grant of the visa. The second and third named applicants do not meet cl.457.321 which has to be satisfied at time of decision. The second and third named applicants are not members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa.  

43. 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

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

    Dione Dimitriadis
    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.