KIM (Migration)

[2018] AATA 3339

KIM (Migration) [2018] AATA 3339 (13 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JIN IL KIM
Mrs SUNA PARK
Ms SEUNGYEON KIM
Mr TAEHWAN KIM

CASE NUMBER:  1815042

DIBP REFERENCE(S):  BCC2017/2480793

MEMBER:Mr S Norman

DATE:13 August 2018

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)(iv) & (v) of Schedule 2 to the Regulations

Statement made on 13 August 2018 at 1:55pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – Standard business sponsorship – English language proficiency – Satisfactory IELTS scores – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.27 Schedule 2 cl 457.223

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 Immigration on 4 May 2018 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 visas on 12 July 2017. At the time the 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas on the basis that the first named applicant (the applicant or primary applicant) did not meet cl.457.223(4)(eb) because the applicant did not provide relevant evidence of English language proficiency.

4. The applicant did lodge evidence of English language proficiency with the Tribunal. I have therefore decided not to schedule a hearing in this case, and to make a decision on the information presently before the Tribunal.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in this case is whether the applicant satisfies cl.457.223(4)(eb). That relevantly stated:

   Standard business sponsorship

   (4)  The applicant meets the requirements of this subclause if:

   …..

   (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 …

8. As noted by the delegate, an exempt applicant was defined in cl.457.223(11) as an applicant who is in a class of applicants specified by the Minister in an instrument in writing for subclause (4). The applicable instrument in writing was IMMI 14/009 Tests, scores, period, level of salary and exemptions to the English language requirement for Subclass 457 (Temporary Work (Skilled)) visas (paragraphs 457.223(4)(eb) and 457.223(6)(a), subparagraph 2.72(10)(g)(iv) and subclause 457.223(11)). The primary applicant is not an exempt applicant because the primary applicant did not satisfy the criteria specified in the aforementioned legislative instrument. Consequently, cl.457.223(4)(eb)(i) does not apply to the applicant.

9. Next, the delegate noted the proposed annual base salary was listed as $57,200 per annum. Clause 457.223(6) applies to an applicant if:

   ·     the applicable base salary for an applicant, under the terms and conditions of employment about which the Minister was last satisfied for r.2.72(1)(c), is at least the level of salary worked out in the way specified by the Minister in an instrument in writing for this regulation; and

   ·     the Minister considers that granting a Subclass 457 Visa to the applicant would be in the interests of Australia.

10. The relevant legislative instrument (formerly IMMI 14/009) specified that for cl.457.223(6), the applicable base salary was $96,400. As the nominated annual base salary was below $96,400, the requirements of cl.457.223(6) were not met.

11. Next, cl.457.223(4)(ea)(i) & (ii) relate to English language requirements for occupations requiring mandatory license, registration or membership. The primary applicant’s nominated occupation of Wall and Floor Tiler (ANZSCO: 333411) does not require them to hold a license, registration or membership that is mandatory to perform the occupation. As cl.457.223(4)(ea)(i) & (ii) do not apply to the (primary) applicant, cl.457.223(4)(eb)(iii) does not apply to the primary applicant.

12. As cl.457.223(4)(ea)(i), (ii) & (iii) do not apply to the primary applicant, they are required to provide evidence they have undertaken a language test specified by the Minister in the relevant legislative instrument (formerly IMMI 14/009) – (cl.457.233(4)(eb)(iv) & (v)). Further, they must achieve 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.

13. With the Tribunal, the applicant lodged a IELTS Test Report Form dated 12 July 2018.[1] The information in the relevant legislative instrument (now IMMI 15/028) states (in part):  

    [1] Tribunal – folio 37.

    8 Specification of scores which must be achieved in the tests specified in section 7
    The following scores are specified for the purpose of subparagraph 457.223(4)(eb)(v) of Schedule 2 to the Regulations:

English test	Minimum band score	Minimum scores for English test components
Listening	Reading	Speaking	Writing
IELTS test	Overall band score 5.0	4.5	4.5	4.5	4.5
…..

1. As the applicant’s IELTS test scores indicated he achieved ‘Listening (4.5)’, ‘Reading (6)’, ‘Writing (5.5)’, and ‘Speaking (5), with an ‘Overall Band Score (6)’, the Tribunal is satisfied the applicant meets the criteria in cl. 457.223(4)(eb)(iv) & (v) of Schedule 2 to the Regulations.

2. 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

3. 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)(iv) & (v) of Schedule 2 to the Regulations

   Mr S Norman
   Member