Gowda (Migration)

[2017] AATA 2489

Gowda (Migration) [2017] AATA 2489 (6 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shivananje Gowda
Mr Anand Shivananje Gowda
Ms Chandana Shivananje Gowda
Ms Mamatha Byaladakere Eregowda

CASE NUMBER:  1618451

DIBP REFERENCE(S):  BCC2013/615700

MEMBER:R. Skaros

DATE:6 November 2017

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)(eb) of Schedule 2 to the Regulations.

Statement made on 06 November 2017 at 12:49pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – Subclass 457 visa – Federal Circuit Court remittal – Applicant not an exempt applicant – English tests completed – English language requirements met

LEGISLATION
Migration Act 1958 ss 65, 360(2)(a)
Migration Regulations 1994 Schedule 2 cls 457.223, 457.223(4), 457.223(4)(eb) ,457.223(4)(eb)(iii) -(iv), 457.223(6) ,457.223(11)

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 26 April 2013.

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 15 October 2013 on the basis that cl.457.223(4)(ec) was not met because the first named applicant (the applicant) did not demonstrate that he had the required English language proficiency in the manner specified by the delegate.

5. The applicant applied for review of that decision and on 15 December 2015 the Tribunal, (differently constituted) affirmed the Department’s decision to refuse the grant of the 457 visas on the basis that cl.457.223(4)(eb) was not met because the applicant, by the time of the Tribunal’s decision, had still not achieved, in a single attempt at the test, the score specified in the instrument.

6. The applicant applied to the Federal Circuit Court for judicial review. On 31 August 2016 the Court set aside the decision and remitted the matter to the Tribunal for reconsideration.

7. In response to a request for information the applicant provided an IELTS test report dated 20 February 2016 indicating that he had achieved a score of at least 4.5 in each of the IELTS test components. Also provided was an acknowledgement of nomination application made by Hebrini Pty Ltd on 4 October 2017 in respect of the applicant.

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

9. The applicants were represented in relation to the review by their registered migration agent.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

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

    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 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.

13. The applicant has not claimed, and there is no evidence before the Tribunal to suggest, that any of the exemptions in IMMI 17/057 apply to the applicant as provided for in cl.457.223(11).

14. There is also no evidence that the applicant will be paid the applicable base salary in cl.457.223(6) which is specified in IMMI 17/057 at AUD 96,400.

15. 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 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.  An IELTS test is one of the specified English tests in IMMI 17/057. The scores that must be obtained in a single attempt 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 and the scores must have been obtained by the applicant in the period of 3 years from the date of the visa application.

16. The applicant has provided an IELTS test report form indicating that he undertook an English test on 20 February 2016 in which he obtained an overall score of 5.0, with scores of 4.5 for listening, 5.0 for reading, 5.0 for writing and 4.5 for speaking. The Tribunal has independently verified these results using the IELTS online verification system. On this evidence, the Tribunal is satisfied that the applicant has undertaken a specified English test in which he obtained the required scores, and that this test was undertaken in the period of 3 years from the date of his visa application, which was made on 26 April 2013.

17. The Tribunal therefore finds that the applicant satisfies cl.457.223(4)(eb)(iii) and (iv) and he therefore satisfies cl.457.223(4)(eb) as a whole.

18. 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 visas.

    DECISION

19. 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)(eb) of Schedule 2 to the Regulations.

    R. Skaros
    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.