1509530 (Migration)

[2016] AATA 3911

1509530 (Migration) [2016] AATA 3911 (16 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ning Wei
Mrs Baoyuan Zhang

CASE NUMBER:  1509530

DIBP REFERENCE(S):  BCC2014/2526328

MEMBER:Dione Dimitriadis

DATE:16 May 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

·cl.457.223(4)(eb) of Schedule 2 to the Regulations.

Statement made on 16 May 2016 at 6:20pm

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 2 October 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 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 6 July 2015 on the basis that cl.457.223(4)(ec) was not met because the first named applicant (the applicant) did not satisfy the English language proficiency requirements.

5. The applicant appeared before the Tribunal on 16 December 2015 and 2 March 2016 to give evidence and present arguments. The Tribunal hearings were conducted with the assistance of an interpreter in the Mandarin and English languages.

6. The applicants were represented in relation to the review by their registered migration agent.

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 applicant meets the English language proficiency requirements. The Tribunal has considered whether the 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)(eb) and (ec). They differ depending on the applicant’s circumstances. In the present case cl.457.223(4)(eb) is relevant. It provides:

   457.223(4)(eb)         if:

   (i)    the applicant is not an exempt applicant; and

   (ii)     subclause (6) does not apply to the applicant;

   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;

   ....

10. The Tribunal finds that none of the exemptions in IMMI 15/028 and IMMI 16/026 apply to the applicant. The Tribunal finds that the applicant is not an exempt applicant under cl.457.223(11), for the purposes of cl.457.223(4)(eb)(i).

11. 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 not at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this paragraph. The base rate of pay in the nomination which was last approved by the Minister was $89,250.  The amount specified in IMMI 15/028 (and in the previous Instrument 14/009) as the applicable base salary is $96,400 per annum.  The Tribunal finds that cl.457.223(6) does not apply to the applicant.

12. As the applicant is not an exempt applicant and cl.457.223(6) does not apply to the applicant, 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).

13. In relation to the Pearson Test of English Academic, the specified score is a minimum overall band score of 36 and a minimum score of 30 for each of the four English test components of listening, reading, speaking and writing. The specified period is the period of three years from the date of visa application.

14. The applicant provided to the Tribunal evidence of a Pearson Test of English Academic which he undertook on 22 February 2016. The applicant achieved the following scores: 36 for Listening, 37 for Reading, 36 for Speaking and 37 for Writing. The overall band score was 36.  The Tribunal has verified the results.  

15. Therefore the applicant has achieved above the minimum score of 30 for each of the four test components of speaking, reading, writing and listening and has achieved the minimum overall band score of 36 in a single attempt at a Pearson Test of English Academic (PTE)    undertaken in the specified period of three years from the date of the visa application.  

16. The Tribunal is 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. The Tribunal finds that the date 22 February 2016 is within the period of three years from the date of the visa application. 

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

19. There is no evidence before the Tribunal that the second named applicant meet the primary criteria for the grant of the visa. The delegate made a decision that the second named applicant does not satisfy cl.457.321 which requires that the second named applicant is a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa. The Tribunal is unable to make a direction that the second named applicant meet this criterion, because at the time of the Tribunal’s decision, the first named applicant is not the holder of a Subclass 457 visa.  The Tribunal refers the case of the second named applicant to the Department of Immigration and Border protection (the Department) to consider her application afresh.

20. The applicant informed the Tribunal that a new application for approval of a nomination has been lodged with the Department. The new nomination application was lodged, according to the ICSE records, on 9 December 2015. As at the date of the Tribunal’s decision, a decision has not yet been made by the Department on the nomination. As over five months have passed since the nomination application was lodged, the Tribunal decided to proceed to determine whether the applicant meets the English language proficiency requirements. This was the criterion that the delegate found the applicant had not met. Having found that the applicant meets cl.457.223(4)(eb) the Tribunal will remit the application for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa, including whether there is a current approved nomination.

    DECISION

21. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 457 visa:

    ·cl.457.223(4)(eb) of Schedule 2 to the Regulations.

    Dione Dimitriadis
    Senior 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

    (eb)if:

    (i)    the applicant is not an exempt applicant; and

    (ii)     subclause (6) does not apply to the applicant;

    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.