Lega Nono (Migration)

[2019] AATA 2309

Lega Nono (Migration) [2019] AATA 2309 (28 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Dimitri Lega Nono

CASE NUMBER:  1834217

DIBP REFERENCE(S):  BCC2017/4332484

MEMBER:Mr S Norman

DATE:28 May 2019

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 28 May 2019 at 12:28pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457– evidence of English language proficiency provided – Program or Project Administrator –decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 140GB
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 applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 17 November 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. The delegate refused to grant the visa on 10 November 2018 on the basis that cl.457.223(4)(eb) – language competence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

4. The applicant applied for the grant of a Temporary Work (Skilled) (subclass 457) visa and was nominated for the position of Program or Project Administrator (ANZSCO: 511112). The sponsor was Gazmick Building Services P/L.  

5. The issue in the present case is whether the visa applicant meets the requirements of cl.457.223(4)(eb). 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. As noted by the delegate:

6. After considering the information before them, the delegate (and now the Tribunal) was not satisfied that any of the exemptions applied (see IMMI 17/057); and neither did the applicant claim any such exemption. In their decision, the delegate went on to note:

7. The delegate said that by Department letter of 27 September 2018, the applicant had been provided with an opportunity to lodge further evidence and submissions that may satisfy the delegate that he met cl.457.223(4)(eb). The applicant had advised by email of 2 October 2018, that he had booked a new English language test. However, as no response was then received prior to the specified timeframe set out in the Department letter of 27 September 2018, and in the absence of any other material evidence, the delegate found that the applicant did not meet cl.457.223(4)(eb). The delegate then refused to grant the applicant a Temporary Work (Skilled) (subclass 457) visa.

8. By email of 6 May 2019, the applicant sent the Tribunal evidence of his new PTE Academic test scores. The Tribunal then independently confirmed that on 4 May 2019, the applicant had received the following PTE Academic test scores:[1]

   ·     Listening              -          41

   ·     Reading               -          41 

   ·     Speaking              -          44 

   ·     Writing                  -          47

   ·     Overall score       -          43 

   [1] Tribunal – folio 41.

9. Based on the new evidence, the applicant satisfies the requirements of cl.457.223(4)(eb); including that the applicant achieved the score within the period specified in the Instrument (IMMI 17/057). Given this finding, 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

10. 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.

    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.