1611483 (Migration)

[2016] AATA 4305

1611483 (Migration) [2016] AATA 4305 (25 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Sooyeol Kim
Ms Heesuk Lim

CASE NUMBER:  1611483

MEMBER:Dione Dimitriadis

DATE:25 August 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)(a) of Schedule 2 to the Regulations;

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

Statement made on 25 August 2016 at 4:12pm

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 23 February 2016.

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 21 July 2016 on the basis that cl.457.223(4)(eb) was not met because the first named applicant (the applicant) did not satisfy the English language proficiency requirements.

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

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 issues in the present case are whether the applicant meets the requirements of cl.457.223(4)(a) and cl.457.223(4)(eb).

   Requirement for an approved nomination

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

10. The Tribunal has had regard to the ICSE records of the Department of Immigration (the Department) stating that a nomination by Mars Tiling Pty Ltd was approved in respect of the applicant as a Wall and Floor Tiler (ANZSCO Code 333411) on 5 May 2016. This approval is current. The standard business sponsor is Mars Tiling Pty Ltd which is approved as a standard business sponsor from 23 February 2016 to 23 February 2021.

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

    English language proficiency

12. 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 requires that:

    ·if the applicant is not an exempt applicant as described in Legislative Instrument 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; then he or she must have achieved in a single attempt a test score specified in that instrument in the specified time.

13. The applicant has not claimed to be an ‘exempt applicant’ as described in IMMI 15/028. The Tribunal finds that none of the exemptions in IMMI 15/028 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).

14. There is no evidence that the applicant will be paid at least a level of salary specified in IMMI 15/028 in circumstances where it is considered the granting of the visa would be in the interests of Australia. The amount specified in IMMI 15/028 as the applicable base salary is $96,400 per annum. The related nomination states that the base rate of pay is $60,000 per annum. The Tribunal is not satisfied that the applicant’s base rate of pay 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.

15. 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).

16. 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 visa application.

17. The applicant provided to the Tribunal evidence of an IELTS test which he undertook on 9 July 2016. The applicant achieved the following scores: 5.0 for Listening, 5.0 for Reading, 5.0 for Writing and 5.0 for Speaking. The overall band score was 5.0.  The Tribunal has verified the results.

18. Therefore the applicant has achieved above the minimum score of 4.5 for each of the four test components of speaking, reading, writing and listening and has achieved the minimum overall band score of 5.0 in a single attempt at an IELTS test undertaken in the specified period of three years from the date of the visa application.  

19. 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 9 July 2016 is within the period of three years from the date of the visa application. 

20. 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).   

21. For these reasons, the applicant satisfies the requirements of cl.457.223(4)(eb).

22. 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 meets 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 to consider her application afresh.

23. Given the findings above, the appropriate course is to remit the applications for the visa to the Minister to consider the remaining criteria for a Subclass 457 visa.

    DECISION

24. 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;

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

    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

    (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.