D'Alterio (Migration)

[2017] AATA 150

D'Alterio (Migration) [2017] AATA 150 (31 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maurizio D'Alterio

CASE NUMBER:  1613282

DIBP REFERENCE(S):  BCC2016/577073

MEMBER:Katie Malyon

DATE:31 January 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

Statement made on 31 January 2017 at 1:06 pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – English language requirement – Specified score in a specified period – IELTS test

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 457.223(4)(eb)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision by a delegate of the Minister for Immigration to refuse to grant the visa applicant, Mr Maurizio D’Alterio, a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr D’Alterio applied for the visa on 9 February 2016. 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 of Schedule 2 of the Regulations.

3. The delegate refused to grant the visa on 2 August 2016 on the basis that Mr D’Alterio did not meet cl.457.223(4)(eb) of Schedule 2 of the Regulations because he did not provide evidence to demonstrate his meets the English language requirement.

4.     Mr D’Alterio appeared before the Tribunal on 16 December 2016 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent who also attended the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr D’Alterio meets the requirements of cl.457.223(4)(eb) of Schedule 2 of the Regulations.

English language proficiency

7. The English language requirements for a Subclass 457 visa are set out in cl.457.223(4)(eb) and (ec) of Schedule 2 of the Regulations. They differ depending on the primary applicant’s circumstances.

8. In the present case cl.457.223(4)(eb) of Schedule 2 of the Regulations is relevant. Essentially, it requires that if the applicant is not an ‘exempt applicant’ under cl.457.223(11) as specified in the relevant legislative instrument (in this case, IMMI 15/028 of 16 April 2015 as amended by IMMI 16/026 of 15 April 2016) 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 the instrument within the specified time.

9. The Tribunal is satisfied, based on the material before it, that Mr D’Alterio is not an exempt applicant under cl.457.223(11) as specified in the legislative instrument for the purposes of cl.457.223(4)(eb)(i) of Schedule 2 of the Regulations. Furthermore, there is no evidence to indicate that Mr D’Alterio will be paid at least a level of salary specified in the legislative instrument in circumstances where it is considered the granting of the visa to him would be in the interests of Australia. Accordingly, the Tribunal is satisfied that cl.457.223(6) does not apply to Mr D’Alterio for the purposes of cl.457.223(4)(eb)(ii) of Schedule 2 of the Regulations..

10. Since cl.457.223(4)(ea)(i) and (ii) of Schedule 2 of the Regulations do not apply, Mr D’Alterio must have undertaken a language test specified in the legislative instrument 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 as a Foreign Language internet-based test (TOEFL iBT); Pearson Test of English Academic (PTE): and, Cambridge English: Advanced test (CAE) where the test was completed on or after 1 January 2015. The specified period is 3 years from the date of the visa application. In relation to an IELTS test, the specified score is at least 4.5 for each of the 4 test components of speaking, reading, writing and listening and a minimum overall band score of 5.0.

11.      The delegate’s decision, a copy of which was provided to the Tribunal, notes that Mr D’Alterio provided evidence of 2 IELTS test results.  However, neither test result indicates that he achieved the requisite score.  Accordingly, the delegate refused his Subclass 457 visa application.

12.      At the hearing, Mr D’Alterio provided evidence of having undertaking a further IELTS test on 3 December 2016 in which achieved an overall test score of at least 5.0 with a score of 5.0 or better in 3 of the 4 test components but a score of just 4.0 in the other test component.  He told the Tribunal that he had booked to take a further IELTS test on 7 January 2017 and provided the Tribunal with evidence of his booking for the test. 

13. Subsequently, Mr D’Alterio provided the Tribunal with evidence of the results from his IELTS test dated 7 January 2017 in which he scored at least 4.5 in each of the 4 test components and an overall band score of 5.0. On the basis of this evidence, the Tribunal is satisfied that Mr D’Alterio has achieved at least the specified scores in a single attempt at an IELTS test undertaken in the period of 3 years from the date of his visa application. For these reasons, the Tribunal finds that Mr D’Alterio satisfies the requirements of cl.457.223(4)(eb)(iv) and (v) and, as a result, satisfies the requirements of cl.457.223(4)(eb) of Schedule 2 of the Regulations.

14.      Given the findings above, the appropriate course is to remit Mr D’Alterio’s application for the visa to the Minister for consideration of the remaining criteria for a Subclass 457 visa.

DECISION

15.      The Tribunal remits the application for a Temporary Business Entry (Class UC) visa for reconsideration, with the direction that the visa applicant meets the following criteria for a Subclass 457 visa:

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

Katie Malyon

Member

ATTACHMENT  
Extract from cl.457.223 of Part 457 of Schedule 2 of the Migration Regulations 1994

457.223

…

(4)Standard business sponsorship  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.

oOOo