Chuah Tung Lin (Migration)

[2018] AATA 5734

Chuah Tung Lin (Migration) [2018] AATA 5734 (7 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chuah Tung Lin

CASE NUMBER:  1721009

DIBP REFERENCE(S):  BCC2016/3597318

MEMBER:Alison Mercer

DATE:7 November 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 07 November 2018 at 7:04pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – subject of an approved nomination – 457 visa program repealed – transitional provisions – English language requirements – test results not submitted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 2.72, 2.75; Schedule 2, cl 457.223

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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 October 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 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 visa on 25 August 2017 on the basis that cl.457.223(4)(eb) was not met because the applicant was not the holder of a specified passport, did not fall within any of the exemption categories and had not done a specified English test in which he obtained the specified results. The delegate found that the applicant therefore did not meet cl.457.223(4)(eb) and did not meet cl.457.223(4) as a whole.

5. The Tribunal received a review application from the applicant on 8 September 2017. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Adam Khaze, to be his representative and authorised recipient for correspondence.

6. The matter was constituted to a Tribunal Member on 4 July 2018.

7. The applicant appeared before by conference telephone the Tribunal on 20 July 2018 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent by telephone conference. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

8. The applicant confirmed that he was still working for his nominating employer, Fortune 118 Pty Ltd, as a Cook.  He had not yet achieved the required results in a specified English test but was booked to undertake a PTE test on 30 July 2018. He told the Tribunal that he had taken an earlier English test in Malaysia (his home country) in February 2018 but had not obtained the required scores. He asked that the Tribunal defer making its decision to enable him to sit the further test, as he came within 1 mark in his previous test of reaching the required scores and had been undertaking online English tuition since then.

9. The applicant’s agent submitted that the applicant was employed in regional Victoria (Mildura) where there was a sizeable Chinese population (which was the applicant’s speciality cuisine) and where it was difficult for Australian employers to attract and retain suitably qualified hospitality staff.

10. The Tribunal discussed with the applicant and his agent the fact that it appeared that the previously approved nomination of him by Fortune 118 Pty Ltd expired on 7 July 2018, and thus it appeared that the applicant would not be able to now satisfy cl.457.223(4)(a), which required him to be the subject of an approved nomination by an approved standard business sponsor. The Tribunal observed that this appeared to be a separate basis for affirming the decision under review, regardless of whether the applicant could now meet cl.457.223(4)(eb) in relation to a specified English test. The Tribunal observed that it did not now appear possible for Fortune 118 Pty Ltd to lodge a new nomination that would satisfy cl.457.223(4)(a) as, due to major legislative amendments that came into effect on 18 March 2018, the subclass 457 visa program, and the associated nomination program, were now closed. The applicant’s agent stated that he understood from Department press releases that the Department was still treating expired nominations as able to satisfy cl.457.223(4)(a). The Tribunal indicated that the legal position was unclear. However, it agreed to defer its decision for a period after the hearing to enable the applicant and his agent to make further submissions on this point.

11. Following the hearing, the Tribunal received an email from the applicant’s agent containing a link to a Department newsletter for March 2018, in which it is stated (in part) that:

    Transitional arrangements are in place as advised in previous newsletters. Additional regulatory amendments have, however, been made to manage subclass 457 visa applications that are currently undergoing review at the … AAT. As a result, an approved nomination will not cease if:

    ·Both the nomination and the associated visa application were lodged before the TSS implementation date [18 March 2018] and

    ·Within 12 months of the nomination being approved, a review application is lodged with the AAT in relation to a decision to refuse the associated subclass 457 visa application.

12. On 12 October 2018, the Tribunal wrote to the applicant via his agent to advise that the Tribunal intended to make its decision on the review application by 19 October 2018, and to request that the applicant provide any information about his ability to satisfy the English language requirement as soon as possible. The letter noted that the Presiding Member accepted that it appeared that the applicant was still the subject of an approved nomination that had not ceased, due to the operation of the relevant transitional provisions.

13. The Tribunal did not receive any further information from the applicant or his agent by 19 October 2018, and has not received any further information to date. It is satisfied that its letter of 12 October 2018 was sent by email to the email address nominated by the applicant’s agent, who is his authorised recipient for correspondence, and there is no record that it was not able to be delivered.

14. The Tribunal has considered whether it should defer its decision for a further period but has decided not to do so, as it considers that the criterion in dispute is confined, the applicant has had the benefit of the assistance of a migration agent, and the applicant has not been able to provide evidence of meeting the applicable English proficiency requirements to date.  Nor is there any credible evidence that he is likely to do so in the near future.

15. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(a) and (eb).

    Requirement for an approved nomination

17. 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.

18. As discussed with the applicant and his agent at hearing, the Department’s records indicate that the nomination of the applicant by Fortune 118 Pty Ltd was approved on 7 July 2017, and normally, r.2.72(2)(b) provides that it ceases 12 months after that date (assuming none of the other cessation factors listed in r.2.72 occur earlier). If this applies, then the nomination would have expired on 7 July 2018, and the applicant would be unable, as at the time of the Tribunal’s decision, to meet cl.457.223(4)(a) (noting that a nomination lodged after 18 March 2018 can only be linked to a new subclass 482 visa, or to an existing subclass 457 holder).

19. However, the transitional provisions to the legislative amendments that came into effect on 18 March 2018 provide that r.2.75(2)(b) does not apply to a nomination made before 18 March 2018 if the person identified in the nomination applied for a subclass 457 visa before 18 March 2018 and he or she applied for a review of a decision to grant that visa within 12 months after the day on which the nomination was approved: clause 6704(15) of Schedule 3 to the Regulations, as inserted by item 178 of Schedule 1 to the amending regulation).

20. Having reviewed the Department’s records, the Tribunal is satisfied that:

    ·Fortune 118 Pty Ltd’s nomination of the applicant was made before 18 March 2018 (as it was approved on 7 July 2017);

    ·the applicant was identified in that nomination and made his subclass 457 visa application on 28 October 2016, before 18 March 2018; and

    ·the applicant applied for review of his visa refusal on 8 September 2017, within 12 months after the day on which the nomination was approved on 7 July 2017.

21. It follows that the nomination falls within the transitional provisions and is not subject to r.2.75(2)(b). Therefore the Tribunal is satisfied that it did not cease by virtue of r.2.75(2)(b) on 7 July 2018. There is no evidence before the Tribunal to indicate that it ceased due to any other circumstance identified in r.2.75 occurring.

22. Accordingly, the Tribunal finds that the nomination has not ceased, and therefore the applicant satisfies cl.457.223(4)(a), as he is still the subject of an approved nomination by an approved standard business sponsor.

    English language proficiency

23. 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 IMMI 17/057; 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.

24. The Tribunal concurs with the delegate (a copy of whose decision was provided to the Tribunal by the applicant) that the applicant does not fall within any of the categories that would exempt him from having to achieve a specified score in a specified English test within a specified timeframe.  Specifically, the Tribunal is satisfied that the applicant:

    ·does not hold a specified passport;

    ·has not completed a minimum of 5 years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English;

    ·was not nominated in relation to a specified occupation pursuant to r.2.59 or 2.68;

    ·was not nominated in relation to an occupation that will be performed at a diplomatic or consular mission of another country or in an office of the Authorities of Taiwan located in Australia;

    ·has not been nominated in an occupation for which registration, licensing or membership is required, and that registration, licensing or membership requires the applicant to demonstrate an level of English proficiency that is equivalent to the level specified in the relevant legislative instrument for these purposes and the applicant has been granted that registration, licensing or membership; and

    ·did not make his application before 1 July 2013.

25. This was not disputed by the applicant or his agent.

26. The Tribunal finds that the applicant therefore does not fall within any of the exemption categories set out in the current legislative instrument, IMMI 17/057, made for the purposes of cl.457.223(11).

27. Moreover, the Tribunal is satisfied that there is no evidence that the applicant will be paid the applicable base salary in cl.457.223(6) ($96,400 per year as per IMMI 17/057). The salary listed in the applicant’s visa application is $55,000.

28. Accordingly, the applicant is not an ‘exempt applicant’ under cl.457.223(4)(eb)(i) or (ii) and is required to satisfy cl.457.223(4)(eb)(iii) and (iv).  This in turn requires the applicant to demonstrate that he has achieved in a single attempt a specified test score in a specified English test in a specified period.  In relation to this requirement, IMMI 17/057 provides that:

    ·one of the specified English tests is the IELTS test;

    ·that the scores that must be obtained in a single sitting of an IELTS test are an overall band score of 5.0, with a minimum score of at least 4.5 in each of the components for listening, reading, speaking and writing;

    ·another specified test is the PTE Academic test;

    ·the scores that must be obtained in a single sitting of a PTE Academic test are an overall band score of at least 36, with a minimum score of at least 30 in each of the components for listening, reading, speaking and writing; and

    ·the above scores must have been obtained by an applicant in the period of 3 years from the date of the visa application.

29. At the time of the delegate’s primary decision, the applicant had not provided evidence of having undertaken a PTE test (or any other specified test) in the relevant period in which he had obtained the specified scores.

30. At the hearing, the applicant told the Tribunal that he was aware that he had to sit a specified test and achieve the required scores in order to meet the requirements for a subclass 457 visa, and that he intended to sit another PTE test in late July 2018. He indicated that he had sat previous ones and but had not achieved the required scores.

31. However, despite the Tribunal’s request, he failed to provide his PTE test results to the Tribunal after the date on which they would have been available (usually a day after a PTE test is undertaken). Nor did he provide any reason why he was unable to do so.

32. Accordingly, there is no evidence before the Tribunal to indicate that the applicant has obtained the specified scores in an IELTS test or a PTE Academic test (or indeed in any other English tests specified in IMMI 17/057) at the time of the Tribunal’s decision.

33. For these reasons, the Tribunal finds that the applicant does not satisfy the requirements of cl.457.223(4)(eb).

34. For the reasons above, the Tribunal finds 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

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

    Alison Mercer
    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.