LEE (Migration)

[2018] AATA 3122

LEE (Migration) [2018] AATA 3122 (27 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DONGCHUN LEE
Ms ARUM CHO

CASE NUMBER:  1723816

DIBP REFERENCE(S):  BCC2016/3732625

MEMBER:R. Skaros

DATE:27 July 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) of Schedule 2 to the Regulations.

Statement made on 27 July 2018 at 10:24am

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled) – English language requirement – IELTS test scores within the timeframe – Decision made on review – Decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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).

2. The visa applicants applied for the visa on 8 November 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 visas on 14 September 2017 on the basis that cl.457.223(4)(eb) was not met because the applicant did not meet the English language proficiency requirement.

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

6. On review, the applicant provided to the Tribunal the results of an IELTS test undertaken on 2 November 2016 which demonstrated that he met the English language proficiency requirement.

7. 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.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   English language proficiency

10. 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.

11. For the purposes of cl.457.223(4)(eb)(i) and cl.457.223(11), there is no evidence before the Tribunal, and the applicant has not claimed, that he is an exempt applicant as provided for at item 11 of the applicable instrument: IMMI 17/057.

12. For the purposes of cl.457.223(4)(eb)(ii) and cl.457.223(6)(a), the evidence before the Tribunal indicates that the applicant’s nominated base salary is $54,000. As the applicant’s base salary is not at least $94,600 as provided for at item 10 in IMMI 17/057, the Tribunal finds that cl.457.223(6) does not apply in this case.

13. Given the above, the applicant must meet the requirements of cl. 457.223(4)(eb)(iv) and (v). The relevant instrument is IMMI 17/057 and it specifies an IELTS test for the purposes of cl.457.223(4)(eb)(iv). It requires an applicant to achieve an IELTS score of at least 4.5 in each of the four test components of listening, reading, speaking and writing, and an overall band score of 5.0. The specified period is three years from the date of visa application.

14. In this case, the applicant has submitted the results of an IELTS test undertaken on 2 November 2017 in which he achieved the following test scores: 4.5 for listening and reading, 5.5 for writing and 5.0 for speaking, with an overall band score of 5.0. These results have been verified.

15. Item 4 of IMMI 17/057 provides that the applicant must have achieved the required results in the period of three years from the date of the visa application. The visa application was lodged on 8 November 2016. The specified scores were therefore achieved within the prescribed period of three years. The Tribunal accordingly finds that the applicant has achieved the specified score in a specified test within the period specified by the Minister. The Tribunal accordingly finds that the applicant meets the requirements of cl.457.223(4)(eb).

16. 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

17. 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.