LKHAGVASUREN (Migration)

[2018] AATA 5389

LKHAGVASUREN (Migration) [2018] AATA 5389 (13 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tulga LKHAGVASUREN
Mrs Erdenetuya AILTGUI
Master Temuulen Tulga

CASE NUMBER:  1821111

DIBP REFERENCE(S):  BCC2018/1283840

MEMBER:Alan McMurran

DATE:13 November 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.

The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 457 visa:

·cl.457.321 of Schedule 2 to the Regulations

Statement made on 13 November 2018 at 5:13pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) – Subclass 457 – English language proficiency – not an exempt applicant – obtained requisite test score – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 457.223(4)(eb), 457.321

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 17 March 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 (the Regulations).

4. 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.

5. The delegate refused to grant the visas on 9 July 2018 on the basis that cl.457.223(4)(eb) was not met because the applicant did not satisfy an English language test and score on the basis of the report record then submitted by the applicant. The applicant had submitted an IELTS English language test result, with an overall band score of 4.0. The required band score for that particular test result was 5.0..

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

   English language proficiency

8. 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.

9. It requires that:

   cl.457.223 (4)(eb)

   ·if the applicant is not an exempt applicant as described in IMMI 15/028 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 (italics added for emphasis);

10. The Tribunal has carefully reviewed the case file and notes the correspondence entered into with the applicant’s representative. On 20 July 2018 the representative made a lengthy submission including that the applicant “is making continuous effort to pass the English test. He has already taken the English test twice, but he could not get the required score in any of the tests.”

11. On 30 June 2018, the Tribunal notes a nomination approval by the Department in respect of the applicant, in favour of the nominator Reward Interiors Pty Ltd, for the position of Joiner ANZSCO 331213.

12. On 18 September 2018, the applicant’s representative provided a copy to the Tribunal of the nomination approval, and evidence of a Cambridge English Level III Certificate. The Tribunal notes that CAE (Cambridge Assessment English) is a recognised English language test the purposes of the subregulation 457.223 (4) (eb)(v)[1]. The test requires an overall band score minimum of 154 (IMMI 15/028, paragraph 3). The applicant score overall was stated as 204, said to be pass at grade A.

    [1] IMMI 15/028

13. The Tribunal has verified the test result based on the Cambridge Assessment, dated 25 July 2018.

14. The Tribunal finds that the applicant is not an exempt applicant identified in the legislative instrument 15/028 and is required to achieve in a single attempt the specified test score, being no less than 154.

15. The Tribunal is satisfied on the basis of the most recent information provided and the Cambridge Assessment Certificate that the applicant has undertaken the test and met the requisite score for the English language test as specified by the Minister in a legislative instrument for the subparagraph, the applicant’s score assessed at 204 which exceeds the minimum requirement.

16. For these reasons, the applicant satisfies the requirements of cl.457.223 (4)(eb).

    Secondary Applicants

17. 457.321 requires that the secondary applicants are members of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is entitled to the issue of a subclass 457 visa.

18. As the primary applicant now meets the primary criteria for the issue of the subclass 457 visa, the Tribunal finds that the secondary applicants are members of the family unit of a person who holds or is entitled to hold a 457 visa.

19. Consequently, the secondary applicants meet the requirements of cl. 457.321.

    Conclusion

20. 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

21. 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.

22. The Tribunal remits the applications for Temporary Business Entry (Class UC) visas for reconsideration, with the direction that the secondary applicants meet the following criteria for a Subclass 457 visa:

    ·cl.457.321 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.