1600328 (Migration)

[2016] AATA 4713

1600328 (Migration) [2016] AATA 4713 (30 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Afrim Avdulai
Ms Gonimet Sali
Mr Driton Sali
Miss Erina Sali

CASE NUMBER:  1600328

DIBP REFERENCE(S):  BCC2015/2292382

MEMBER:Stavros Georgiadis

DATE:30 November 2016

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration in respect of all applicants, 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 30 November 2016 at 6:29pm

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 10 August 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 22 December 2015 on the basis that cl.457.223(4)(eb) was not met because the applicant could not satisfy the English language proficiency requirements for demonstrated IELTS Test Scores for the grant of the visa.  At the time of the delegate’s decision the applicant had scored the following IELTS Test Scores in a test undertaken on 7 November 2015:

   ● Listening                  5.0
   ● Reading                   3.5
   ● Writing   4.5
   ● Speaking                  6.0
      Overall band score   5.0

5. The Tribunal subsequently received further (updated) IELTS Tests Score information in respect of the first named applicant and was able to determine the matter on the papers without the need for a hearing.

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 in respect of all applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The key issue in the present case is whether the first named applicant meets the requirements of cl.457.223(4)(eb) relating to English language proficiency as demonstrated by IELTS Test Scores for the grant of the visa.

9. A visa cannot be granted unless a primary applicant meets the relevant legal requirements that are specified in the Act and the Regulations.

   457.22 Criteria to be satisfied at time of decision

   [457.223] (4) The applicant meets the requirements of this subclause:
   (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

   [457.223] (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.

   Assessment against subparagraph 457.223(4)(eb)(ii)

10. The related approved nomination specifies that the annual base salary to be paid to the primary applicant will be $54,000 p.a. and the employment contract is signed by the approved sponsor. Clause 457.223(6) applies to an applicant if:

    ●  the applicable base salary 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
    ●  the Minister considers that granting a Subclass 457 visa to the applicant would be in the interests of Australia.

11. The relevant Legislative Instrument (IMMI 15/028) specifies that for 457.223(6) the applicable annual base salary is $96,400. As the nominated annual base salary is below $96,400 the requirements of 457.223(6) are not met. Consequently, subparagraph 457.223(4)(eb)(ii) does not apply to the primary applicant.

    Assessment against subparagraph 457.223(4)(eb)(iii)

12. Subparagraphs 457.223(4)(ea)(i) and (ii) relate to English language requirements for occupations requiring mandatory licence, registration or membership. The first named applicant’s nominated occupation of Footballer ANZSCO: 452411 does not require him to hold a licence, registration or membership that is mandatory to perform this occupation.

13. As subparagraphs 457.223(4)(ea)(i) and (ii) do not apply to the primary applicant, subparagraph 457.223(4)(eb)(iii) does not apply to the primary applicant.  As all the subparagraphs 457.223(4)(eb)(i), (ii) and (iii) do not apply, the first named applicant is therefore required to provide evidence that he has undertaken a language test specified by the Minister in IMMI 15/028 and achieved, within the period specified by the Minister in a single attempt at the test, the score specified by the Minister in the instrument.

    Assessment against subparagraphs 457.223(4)(eb)(iv) and (v)

14. The Minister has specified the following scores for subparagraph 457.223(4)(eb)(v) in Legislative Instrument IMMI 15/028 relating to Test Scores, period, level of salary and exemptions to the English language requirement for Subclass 457 (Temporary Work (Skilled)) visas (Paragraphs 457.223(4)(eb) and 457.223(6)(a), subparagraph 2.72(10)(g)(iv) and subclause 457.223(11) respectively). 

15. The requirement is for an applicant to achieve IELTS Test Scores with an overall band score of 5.0 with a minimum of 4.5 on each of the four bands: Listening, Reading, Speaking, and Writing.

16. On 30 November 2016 the first named applicant provided to the Tribunal, via his registered migration agent, documentary evidence of IELTS Test Scores undertaken in a test on 5 November 2016. The first named applicant provided an IELTS Report Form issued on 17 November 2016 that indicates that he achieved the following scores with an overall band score is 5.0:

    ·Listening   5.0

    ·Reading   4.5

    ·Writing   4.5

    ·Speaking                    6.0

17. The IELTS result provided indicates that the first named applicant has now achieved the required score of at least 4.5 in each of the four test components and an overall band score of 5.0.

18. Based on this information the Tribunal is satisfied there is sufficient information to demonstrate that the first named applicant meets cl.457.223(4)(eb). The Tribunal finds that cl.457.223(4)(eb) of Schedule 2 to the Regulations has been met by the first named applicant on the date of the Tribunal’s decision.

19. Therefore, the first named applicant meets cl.457.223(4)(eb).

20. Given the findings above, the appropriate course is to remit the application for the visas to the Minister to consider the remaining criteria for a Subclass 457 visa in respect of all applicants as members of the family unit of the first named applicant.

    DECISION

21. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration in respect of all applicants, 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.

    Stavros Georgiadis
    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.