Grewal (Migration)

[2020] AATA 2519

Grewal (Migration) [2020] AATA 2519 (29 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Inderjeet Singh Grewal
Mrs Gurpreet Kour
Miss Gurnoor Kaur

CASE NUMBER:  1812533

DIBP REFERENCE(S):  BCC2017/977712

MEMBER:Mr S Norman

DATE:29 April 2020

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)(ec) of Schedule 2 to the Regulations.

Statement made on 29 April 2020 at 10:32am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – English language proficiency requirements met – evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 359
Migration Regulations 1994, 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 visa applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The visa applicants applied for the visa on 11 March 2017. 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.

3. The delegate refused to grant the visas on 11 April 2018 on the basis that cl.457.223(4)(ec) was not met. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

5. The English language requirements for this visa are set out in cl.457.223(4)(eb) & (ec). They differ depending on the applicant’s circumstances. In the present case cl.457.223(4)(ec) is relevant. It requires that:

   ·if the Minister requires the applicant to demonstrate his or her English language proficiency, the applicant does so in the manner specified by the Minister.

6. In their decision, the delegate noted that on 13/04/2017, the applicant was contacted by an officer, in writing, and requested to demonstrate his English language proficiency by providing the following evidence (amongst other things):

   Evidence of English language ability
   Provide evidence demonstrating your English language ability:
   If you have already completed one of the following tests:

   ·     International English Language Testing System (IELTS)

   ·     Occupational English Test (OET)

   ·     Test of English as a Foreign Language internet-based test (TOEFL iBT)

   ·     Pearson Test of English (PTE) Academic test

   ·     Cambridge English: Advanced (CAE) test which was conducted on or after 1 January 2015.

   Provide a copy of the test report form which indicates:

   ·     an International English Language Testing System (IELTS) overall test score of at least 5.0 with a score of at least 4.5 in each of the four test components

   ·     an Occupational English Test (OET) score of at least “B” in each of the four components

   ·     a Test of English as a Foreign Language internet-based test (TOEFL iBT) total score of at least 36 with a score of at least 3 for each of the test components of listening and reading, and a score of at least 12 for each of the test components of writing and speaking

   ·     a Pearson Test of English (PTE) Academic overall test score of at least 36 with a score of at least 30 in each of the four test components

   ·     a Cambridge English: Advanced (CAE) overall test score of at least 154 with a score of at least 147 in each of the four test components, where the test was conducted on or after 1 January 2015.

   The English language test must have been completed within three years of lodging your application for a Subclass 457 visa.

   If you have not completed an English language proficiency test conducted by one of these providers in the last three years, provide evidence that you have a place confirmed in the next available English language test conducted by one of these providers.

7. The applicant was provided with an extension of time within which to submit relevant information to the Department. However, at the date of the delegate’s decision, the applicant had not responded to the request. The delegate continued they were not satisfied the primary applicant had demonstrated his English language proficiency in the manner specified by the Minister. Consequently, the applicant did not meet paragraph 457.223(4)(ec). Therefore, the delegate was not satisfied subclause 457.223(4) had been met.

8. As noted above, the applicant applied for the visa on 11 March 2017. Relevant to this case, IMMI 17/057 provided that the following scores are specified for the purposes of cl.457.223(4)(eb)(v) of Schedule 2 of the Regulations:

9. The Tribunal issued a s.359(2) letter dated 23 April 2020. Amongst other things, the letter requested the applicant provide information in writing that could assist the Tribunal in determining whether the applicant ‘met cl.457.223(4)(ec) – demonstration of English language proficiency.’

10. By migration agent email of 23 April 2020, evidence was lodged of the applicant having TOEFL iBT (English language) test results dated 1 February 2020. That indicated the following:

11. Based on the evidence, the Tribunal is therefore satisfied the applicant has exceeded the minimum TOEFL iBT test scores provided in IMMI 17/057 for cl.457.223(4)(eb)(v); and has also demonstrated his English language proficiency as required by the delegate and the Tribunal. The Tribunal is also satisfied the test scores were achieved at one test, and within three years of lodging the Subclass 457 visa application. 

12. For this reason, the applicant satisfies the requirements of cl.457.223(4)(ec).

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

    decision

14. 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)(ec) of Schedule 2 to the Regulations.

    Mr S Norman
    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.