Patel (Migration)

[2020] AATA 4885

Patel (Migration) [2020] AATA 4885 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Pinkiben Rakeshkumar Patel
Mr Prem Rakesh Kumar Patel
Mr Rakesh Kumar Jivrambhai Patel

CASE NUMBER:  1917523

DIBP REFERENCE(S):  BCC2016/2227225

MEMBER:Sheridan Lee

DATE:5 October 2020

PLACE OF DECISION:  Melbourne

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 5 October 2020 at 2:17 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – Hair or Beauty Salon Manager – English language proficiency – IELTS Test Report supplied – required minimum score achieved – decision under review remitted

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 30 June 2016. 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.

3. The delegate refused to grant the visas on 15 June 2019 on the basis that cl.457.223(4)(eb) was not met because the primary applicant (the applicant) had not achieved the minimum score required in an English language test.

4. The applicant appeared before the Tribunal on 30 September 2020 to give evidence and present arguments. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

6. 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 the applicant to have:

   ·undertaken a language test specified in the applicable legislative instrument (in this case IMMI 17/057),

   ·achieved the score specified in that instrument within the period specified in a single attempt at the test.

7. Applicants are not required to demonstrate English proficiency under cl.457.223(4)(eb) where their base rate of pay, under the terms and conditions of employment about which the nomination was approved, is at least the level of salary specified in the relevant legislative instrument (currently $96,400 per annum), and it is considered the granting of the visa would be in the interests of Australia.

8. In addition to highly paid employees, the applicant is not required to meet the requirements of cl.457.223(4)(eb) if they are an ‘exempt person’ as defined in cl.457.223(11).

9. IMMI 17/057 details various classes of ‘exempt applicant’ for cl 457.223(11) which broadly speaking include:

   ·certain passport holders (exempt issuing countries are the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland)

   ·applicants who have completed a minimum of 5 years full-time secondary or higher study in English

   ·applicants who have demonstrated English language ability at the level required for cl 457.223(4)(eb) when obtaining a registration, licence or membership required by their nominated occupation

   ·certain applicants who lodged their visa applications before 1 July 2013 and have nominated certain kinds of occupation.

10. The applicant was nominated to work in the occupation of Hair or Beauty Salon Manager and holds an Indian passport. She has made no claim to have completed a minimum of 5 years full-time secondary or higher study in English and did not require a registration, licence or membership to work in the nominated occupation. On the available evidence, the applicant does not fall within any of the exempt persons for the purposes of cl.457.223(11).

11. At the Tribunal hearing, the applicant advised that the rate of pay offered to her at the time of nomination was $53,900 per annum. As such, the applicant must meet the English language requirements.

12. In submissions dated 23 September 2020, the applicant claimed to have sat an IELTS test, which was supplied to the Tribunal (differently constituted) when considering the review of a decision to refuse the related nomination application made by Khana Peena Pty Ltd.

13. At the hearing, the applicant outlined that it was her understanding that the documents would be provided to the Department and considered in respect of her visa application. However, that did not eventuate. In post-hearing submissions, the applicant supplied a copy of an IELTS Test Report Form issued on 3 June 2017. The overall score achieved was 7 and the applicant achieved the required minimum score in each component of the test.

14. The period currently specified in the instrument for meeting the English requirement is three years from the date of the visa application.[1] The applicant applied for the visa on 30 June 2016 and achieved a successful test result on 3 June 2017, within the three year limit.

    [1] IMMI 17/057, item 9.

15. For these reasons, the applicant satisfies 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.

17. As the second and third named applicants applied on the basis of being a member of the family unit of the first named applicant, their application will be determined by reference to the outcome of the first named applicant’s application on remittal to the Department for reconsideration.

    DECISION

18. 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.

    Sheridan Lee
    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.