1510395 (Migration)

[2016] AATA 3159

1510395 (Migration) [2016] AATA 3159 (29 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Karuppasamy Velchamy

CASE NUMBER:  1510395

DIBP REFERENCE(S):  BCC2014/2649307

MEMBER:Marten Kennedy

DATE:29 January 2016

PLACE OF DECISION:  Adelaide

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

Statement made on 29 January 2016 at 5:08pm

STATEMENT OF DECISION AND REASONS

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).  The visa applicant applied for the visa on 9 October 2014.

2. 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 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.

3. The delegate refused to grant the visa on 10 July 2015 on the basis that the applicant had not met any of the requirements for exemption from applicable English language proficiency requirements, and had not demonstrated the required level of English language proficiency. 

4. On 11 January 2015, I wrote to the applicant through his registered migration agent pursuant to section 359(2) of the Act.  I invited information, supported by documentary evidence, to show that he either had achieved the requisite score within the requisite time period or was otherwise an exempt applicant.  I provided the applicant with a copy of IMMI 15/028, being the relevant instrument setting out tests, scores and exemptions to the English language requirement for subclass 457 visas.

5. The prescribed period in which to provide the information elapsed without response. As a courtesy, conscious that my invitation had been issued shortly after the new year, I arranged for the applicant’s representative to be contacted to ensure the invitation had not been overlooked.

6. After some correspondence between the Registry and the agent, I have received a letter from the agent advising that the applicant has no realistic chance of achieving the scores in Australia while working full time, and will return to India to undertake the test there.  The agent indicated that it was understood I will proceed to make an adverse decision.

7. The information I have requested in my letter of 14 April 2014 has not been provided, nor was a request made for further time. 

8. In this case, I have exercised my power to formally invite, in writing, the applicant to give information under ss.359(2). Certain consequences flow from the failure of the applicant to respond to my invitation, and these consequences I note are set out in the body of the letter and acknowledged by the applicant’s agent.

9. First, having not provided the information I had requested in my invitation, the review applicant loses any entitlement to appear before the Tribunal to give evidence and present arguments relating to the issues in the review: section 360(3) of the Act[1].

   [1] Yang v Minister for Immigration and Anor  [2010] FMCA 890

10. Second, I may now make a decision on the review without taking any further action to obtain the information: section 359C(1) of the Act. However, I recognise that I am not obliged to do so, and it is open to me to take further action to obtain the information (for example, by sending a further invitation). 

11. In this case, I will proceed to finalise the review.  I do so upon noting that this is the applicant’s expectation and there is no intention to provide me with evidence essential for any outcome other than to affirm the decision.

    CONSIDERATION

12. 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, and the issue in the review is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb).

13. 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. 

14. I have considered the various classes of applicants who are ‘exempt applicants’ in item 7 of IMMI 15/028.  There is no evidence before me to suggest:

    ·The applicant is a citizen of and holds a valid passport for any of the nominated ‘English-speaking’ countries;

    ·The applicant was educated in English for at least 5 years;

    ·Will be working at a diplomatic mission;

    ·Is the subject of an approved nomination for an occupation that in in ANZSCO Major Groups 1,2,4,5,6 or sub-major group 31 or Unit Group 3993.  In this regard I note that the applicant’s nominated occupation is that of ‘cook’, falling within Major Group 3 and sub-major group 35.

    ·Is the subject of an approved nomination where the application for approval of the nomination was made before 1 July 2010.

15. I find that the applicant is not therefore an ‘exempt applicant’

16. There is no evidence before me to indicate that the applicant will be paid a base salary in excess of $96 400 per annum, being the applicable base salary provided for at item 6 of IMMI 15/028.  To the contrary, the applicant’s application for the visa indicates he will be paid a salary of $54 000.

17. As to whether the applicant has undertaken achieved in a single attempt a test score specified in IMMI 15/028, the instrument identifies various English language proficiency tests and corresponding scores.  The period specified in the instrument is “the period of three years from the date of the visa application.” 

18. I have no evidence before me to demonstrate that the applicant has achieved the requisite score in any of the prescribed tests. I note the applicant has come very close indeed to obtaining the required scores in IELTS tests in previous attempts identified in the delegate’s decision. Nonetheless I must find therefore that the applicant does not satisfy cl.457.223(4)(eb) of Schedule 2 to the Regulations

19. I find 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.

    Marten Kennedy
    Member

    
    

    ATTACHMENT  -  CLAUSE 457.223 (EXTRACT)

    457.223

    …

    Standard business sponsorship

    …

    (4)The applicant meets the requirements of this subclause if:

    …

    (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

    …