1511323 (Migration)

[2016] AATA 3427

1511323 (Migration) [2016] AATA 3427 (29 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tanatorn Sreevichian
Ms Tassapon Borisutsawad

CASE NUMBER:  1511323

DIBP REFERENCE(S):  BCC2015/1310347

MEMBER:Don Lucas

DATE:29 February 2016

PLACE OF DECISION:  Melbourne

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)(a) of Schedule 2 to the Regulations.

Statement made on 29 February 2016 at 9:35am

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

2. The visa applicants applied for the visa on 6 May 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 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 visas on 30 July 2015 on the basis that cl.457.223(4)(eb) was not met because the first named applicant (the applicant) was required to satisfy cl,457.223(4)(eb),and had failed to satisfy the English language requirements in IMMI 15/028 for the purposes of cl.457.223(4)(eb).

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

6. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issues in the present case include whether the primary visa applicant is required meet the requirements of cl.457.223(4)(eb) or is exempt from this requirement under cl.457.223(11). The Tribunal has further considered whether the applicant meets mandatory nomination requirements in cl.457.223(4)(a).

   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. In the present case cl.457.223(4)(eb) was relevant to the Delegate’s consideration. Where applicable, 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.

10. The evidence before the Tribunal is that the applicant has been nominated in the occupation of Cook, ANZSCO[1] 351411. This is not an occupation requiring the applicant to hold a licence, registration or membership for the nominated occupation which requires a better score than that specified in the relevant Gazette, IMMI 15.028.

    [1] The Australian and New Zealand Standard Classification of Occupations (ANZSCO) dictionary

11. Clause cl.457.223(4)(eb) will not apply if the applicant is exempt (cl.457.223(4)(eb)(i). Under cl. 457.223(11), exempt applicant means an applicant who is in a class of applicants specified by the Minister in an instrum​ent in writing​ for this subclause, IMMI 15/028. Item 7 of this instrument states that:

    7. SPECIFY the following classes of Subclass 457 visa applicants to be an exempt applicant under subclause 457.223(11) of Schedule 2 of the Regulations:

    (a) an applicant who i​s a citizen of, and who holds a valid passport issued by:

    (i) the United Kingdom; 

    (ii)  the United States of America; 

    (iii) Canada;  

    (iv)  New Zealand; or

    (v) the Republic of Ireland; or

    (b) an applicant who:

    (i) is nominated in an occupation that does not require a level of English language competency for grant (however described) of registration, licence or membership; and 

    (ii)  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…”

12. The applicant holds a passport of the Kingdom of Thailand and is not exempt under item 7(a) of the Gazette.

13. However, whilst not provided to the Department, the applicant has provided the Tribunal with evidence of having studied for over 5 years full-time in Australia in higher education institutions where the instruction was delivered in English, as follows:.

14. The applicant has provided documentary evidence in support of this claim which the Tribunal accepts. The Tribunal further accepts that the applicant had incorrectly and inadvertently answered the question in the online application form in the negative, concerning five years of full time secondary/higher education study in the English language medium of instruction. It is evident to the Tribunal that at the primary stage, the applicant believed she was required to demonstrate English language proficiency by the production of an IELTS test showing the requisite scores, and she had failed to do so in one of the four components of a test undertaken on 13 June 2015.

15. Accordingly, the Tribunal is satisfied that the applicant does not need to satisfy cl.457.223(4)(eb)(ii) because she is exempted under cl.457.223(11) for the purposes of cl.457.223(4)(eb)(i).

16. Under s.349(2)(c) of the Act, the Tribunal only has power to remit a matter in accordance with directions permitted under regulation 4.15(1)(b) concerning satisfaction of particular criteria. The Tribunal’s finding that the criterion in dispute, namely cl.457.223(4)(eb)(ii), does not apply to the applicant, is not a finding that she meets the criterion, but rather involves a finding that she does not need to meet the criterion in dispute because she is exempt from this requirement.

17. The Tribunal has accordingly proceeded to consider the applicant’s satisfaction of another criterion in order to make a permissible direction remitting the application for further consideration.

    Requirement for an approved nomination

18. Clause 457.223(4)(a) requires that there is an approved nomination of an occupation relating to the applicant by a standard business sponsor that has not ceased.

19. Information from the Department’s Integrated Client Service Environment (ICSE) database confirms that on 6 May 2015 the applicant was identified in a nomination made by 888 Fortunate Pty Ltd. On 16 May 2015 that nomination was approved.

20. Under the terms of r.2.75, this nomination remains valid until 16 May 2016. There is no evidence before the Tribunal that this nomination has been withdrawn.

21. For these reasons the requirements of cl.457.223(4)(a) are met.

    CONCLUSIONS

22. 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 to be met by the applicant and by her spouse as secondary applicant.

    decision

23. 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)(a) of Schedule 2 to the Regulations.

    Don Lucas
    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.