Candra (Migration)

[2021] AATA 2367

Candra (Migration) [2021] AATA 2367 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Candra
Ms Juni Suryani
Miss Mikhayla Vanesa Ang

CASE NUMBER:  2104107

HOME AFFAIRS REFERENCE(S):          BCC2016/4346598

MEMBER:Phoebe Dunn

DATE:22 June 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications 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 22 June 2021 at 8:50am

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – English language requirement – Pearson Test of English Academic Test result – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 457.223, 457.321

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). The applicants applied for the visas on 23 December 2016. The delegate refused to grant the visas on 22 March 2021.

2. The delegate made the decision on the basis that evidence of English language ability was not provided by the first named applicant (the applicant) as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (the Regulations).

3. On 20 May 2021, the Tribunal received a copy of the applicant’s Pearson Test of English Academic (PTE) test report dated 21 March 2021 which shows that the applicant achieved an overall score of 44 and exceeded the minimum requirement in each of the English language skills components, meeting the requirements of the relevant instrument (IMMI 17/057). In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. The delegate made a decision that the second and third named applicants did not satisfy cl.457.321, which requires that they are a member of the family unit of a person (the primary applicant) who holds a Subclass 457 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

5. The Tribunal is unable to make a direction that the second and third named applicants meet this criterion, because at the time of the Tribunal’s decision, the applicant does not hold a Subclass 457 visa.  The Tribunal refers the case of the second and third named applicants to the Department to consider the applications afresh.

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 applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

   DECISION

7. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 457 visa:

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

   Phoebe Dunn
   Member