Li (Migration)

[2021] AATA 5405

Li (Migration) [2021] AATA 5405 (23 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhenlan Li
Mrs Huarong Cai
Master Zongwen Li
Miss Xinyu Li

CASE NUMBER:  1832196

HOME AFFAIRS REFERENCE(S):          BCC2018/47849

MEMBER:Cathrine Burnett-Wake

DATE:23 September 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

Statement made on 23 September 2021 at 2:51pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 (Temporary Work (Skilled)) – standard business sponsor – English language proficiency – IMMI 17/057 – salary-based exemption – application made on or after 1 July 2017 – request for Ministerial Intervention declined – decision under review affirmed

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 Home Affairs to refuse to grant the visa applicants Temporary Business Entry (Class UC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The visa applicants applied for the visa on 4 January 2018.

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 (Cth) (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 12 October 2018 on the basis that that they were not satisfied that the evidence provided demonstrated that the applicant satisfied the English language test and score requirements as per paragraph 457.223(4)(eb).

5. The applicants appeared before the Tribunal on 6 August 2021 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Jimmy Sahyoun, the applicant’s employer. 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. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   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)(eb).

   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)(eb) is relevant. It requires that:

   ·if the applicant is not an exempt applicant as described in the relevant instrument (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.

10. At hearing the applicant conceded he was not an except applicant as he was not the holder of an eligible passport which would exempt him from undertaking a prescribed English language test.  He further conceded that he had not achieved the required result in a test as prescribed.

11. The Tribunal outlined to the applicant during the hearing that it acknowledged the claims he had put forward of why his visa should be ‘approved.’ Those being that his work did not require him to communicate in English. However, these claims do not circumvent the requirements that unless exempted he must have achieved in a single attempt a test score specified in that instrument in the specified time.

12. The applicant was given the opportunity, post hearing, to provide evidence on whether any other exceptions may apply to him as per the instrument.

13. Following the hearing, on 6 September 2021, the applicants’ representative wrote to the Tribunal and advised:

    He was paid a salary of $96,410.00 per annum plus Superannuation of 9.5%, which meets the English Language salary exemption.

14. Subparagraph 10 of IMMI 17/057 sets out exemptions on the basis of ‘salary’. It sets out:

    10  Specification of salaries above which Subclass 457 applicants are exempt from the requirement to undertake English language tests

    For applications for Subclass 457 visas made prior to 1 July 2017, it is specified for the purposes of paragraph 457.223(6)(a) that the base rate of pay (expressed as an annual salary) is at least the level of salary, where:

    (a)the base rate of pay has the same meaning as in subregulation 2.57(1) of the Regulations; and

    (b)the level of salary is AUD 96,400.

    [Note: Section 10 has the same effect as item 6 of the repealed instrument IMMI 15/028. There are no general salary-based exemptions from English language requirements for Subclass 457 visa applications made on or after 1 July 2017.]

15. This visa application was submitted on 4 January 2018, therefore the Tribunal rejects the representative’s submission the applicant meets the ‘salary exemption’ as it is not available to applications made on or after 1 July 2017. 

16. Based on the evidence before it, the Tribunal finds the applicant is not an ‘exempt’ applicant; and the applicant has not achieved, in a single attempt, a specified test score in the specified time.

17. For these reasons, the applicant does not satisfy the requirements of cl 457.223(4)(eb).

18. For the reasons above, the Tribunal finds that the requirements for the standard business sponsor stream have not been met. No claims have been made in respect of the other streams in cl 457.223 and there is no evidence that the visa applicant would be able to satisfy the specific criteria for those streams.

19. As the secondary applicants are dependent upon the main applicant, their applications must also be affirmed. They have not put forward claims to meet the requirements in their own right.

20. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

21. The applicant’s representative in their submission of 6 September 2021, put forward the following reasons of why they believed the Tribunal should refer the matter to the Minister:

    25. Master Tops would like to request that if the Member does not find favourably in Zhenlan’s case, the Minister intervene due to the compelling need of Zhenlan and Zongwen Li to work for Master Tops, and the ties they have established in the Australian community. 

    26. The compelling reasons being that Master Tops is an Australian company providing employment to Australians and services and essential products to Australian businesses/builders, and ongoing work with the Australian Government through Brown Brother Furniture tenders.  This would be a major loss to Australia if Zhenlan’s visa is not  granted.  If Master Top’s were to close it would cause a ripple effect with other major Australian businesses and builders not being able to procure product from Master Top’s which in turn will lead to those companies and business suffering and maybe even closing.

    27. Zhenlan had met the English language exemption from 7 February 2016 and this has recently been increased to $98,000.00 per annum.  Other migrants who were friends with Zhenlan from China, who also could not pass IELTS and applied at the same time as him, already have their permanent residency. 

    28. Due to incompetence on the part of Zhenlan’s migration agent, who did not submit his application in the given timeframe, an Australian company is going to have to close due to losing the only two staff the owner has in the factory and not being able to find replacement staff. 

    29. Zhenlan is a very humble, quiet man, with no criminal history.

22. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

23. The Tribunal affirms the decision not to grant the applicants Temporary Business Entry (Class UC) visas.

    Cathrine Burnett-Wake
    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.