LI (Migration)

[2017] AATA 1375

LI (Migration) [2017] AATA 1375 (9 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr JUN LI
Ms SHUZHI LIANG
Mr LIANGYI LI
Master ZIGE LI

CASE NUMBER:  1620824

DIBP REFERENCE(S):  BCC2016/2333649

MEMBER:Alan McMurran

DATE: 9 August 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)(ec) of Schedule 2 to the Regulations.

Statement made on 09 August 2017 at 1:59pm

CATCHWORDS

Migration – Temporary Business Entry (Class UC) visa – Subclass 457 – English language proficiency – Achieved necessary score – Evidence provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 457.223(4)

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 12 July 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 16 November 2016 on the basis that cl.457.223 (4)(ec) was not met because the Visa applicant had been provided with 28 and 49 days respectively to submit evidence to demonstrate English language proficiency in the manner specified by the Minister and had failed to do so.

5. The applicants appeared before the Tribunal on 3 August 2017 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

   English language proficiency

9. 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) (ec) is relevant. It requires that:

   cl.457.223(4)(ec)

   ·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.

10. On 29 June 2017, the tribunal wrote to the Visa applicant inviting him to appear before the Tribunal give evidence and present arguments. The Visa applicant was also invited to submit any additional documents or information he may wish to rely upon during the hearing and to do so by 27 July 2017. The letter was sent to the Visa applicant to his registered agent, Mr Liang, of Maxim Legal Pty. Ltd. by email the same day, on 29 June 2017.

11. On 29 June 2017, the Tribunal sent a further letter to the Visa applicant requesting that he provide evidence of current English language proficiency and to inform the Tribunal whether any further testing had been completed. The Visa applicant was also invited to provide information on the status of the current business sponsor, Jun Tai Health Pty. Ltd. this information was requested to be provided by 27 July 2017. That letter was also sent to the representative, Mr Liang by email on the same date, 29 June 2017.

12. On 27 July 2017, the Tribunal received an email from Mr Liang with attachments. Those attachments included the response to the invitation to hearing, a copy of a PTE academic score report, a new nomination application and a screenshot to show progress of the new nomination application. The PTE score result indicated that the Visa applicant met the minimum requirement for English language proficiency as set out below.

13. At the hearing, the Tribunal discussed with the Visa applicant the test report from PTE. The PTE (Pearson Test of English Academic) is one of five approved English language tests which the Minister may accept to demonstrate English language proficiency. The test requires that the test applicant receive an overall test score of at least 36, with a score of at least 30 in each of the four test components being listening, reading, speaking and writing. The applicant achieved an overall score of 43, and for each of the four skills received 43 for listening, 57 for reading, 35 for speaking, and 51 for writing. The test score report was issued on 4 August 2017 and the scores are valid until 24 June 2019.

14. The Tribunal explained at the hearing to the Visa applicant that the test score had not yet been verified and the Tribunal required the score to be verified prior to making its decision. As the Visa applicant was able to access the test outcome via the Internet, and the Tribunal required a short period for independent verification of the test score, the Visa applicant was requested to provide that confirmation by 10 August 2017, notwithstanding the Tribunal would also make its own enquiries to verify the test score.

15. The Tribunal received independent verification of the test score which was confirmed on the PTE website on 8 August 2017.

16. At the hearing, the Visa applicant was asked questions about his current standard business sponsor. He indicated that the previous sponsorship had lapsed and that he had sought sponsorship from a new sponsor, Relax Feet Pty. Ltd. the Visa applicant said the new sponsor was located at Orange Street, Hurstville and that he was working there four or five days a week in shifts of approximately eight hours. He said that he was awaiting the outcome of the nomination by the new sponsor.

17. The Tribunal pointed out to the applicant that the Minister has discretion to require the applicant to demonstrate his or her English language proficiency in circumstances where there is no evidence of any proficiency. The Department had provided the Visa applicant with a letter on 27 September 2016, which included a Checklist requiring evidence of English language ability.[1] At the hearing, the Tribunal noted the presence of the interpreter to assist the Visa applicant and formed the view it was entirely appropriate for the Visa applicant to provide evidence of his English language proficiency. The Visa applicant said that it had been “very hard” for him to achieve the necessary standard. The Visa applicant did not conduct the hearing interview in English and relied entirely upon the interpreter. In the circumstances, the Tribunal accepted that it was appropriate to require the applicant to demonstrate his English language proficiency as had been requested by the Minister.

    [1] DIBP Folio 98

18. In light of the fact that the Visa applicant has achieved the necessary test score through PTE and provided satisfactory evidence to that effect, being the certificate which has now been independently verified by the Tribunal, the Visa applicant has satisfied the criterion in cl.457. 223 (4)(ec).

19. For these reasons, the applicant satisfies the requirements of cl.457.223(4)(ec).

20. The delegate also refused a Visa to the secondary applicants, being the wife and children of the primary applicant and who are included in this application. The delegate refused those visas because it followed that the refusal of the primary applicant’s Visa meant that the secondary applicant did not meet the secondary criteria. As the Tribunal is remitting the application, it is appropriate for the delegate to consider the secondary criteria on remittal.

21. 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

22. 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.

    Alan McMurran
    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.