Sa Pires Dos Reis (Migration)

[2019] AATA 1086

Sa Pires Dos Reis (Migration) [2019] AATA 1086 (23 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Wesley Sa Pires Dos Reis
Mrs Maria Alzira Lopes Dos Reis

CASE NUMBER:  1902001

DIBP REFERENCE(S):  BCC2018/710770

MEMBER:Katie Malyon

DATE:23 May 2019

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.

Statement made on 23 May 2019 at 3:04 pm

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 – English language requirement – decision made on material at hand – not exempt – IELTS test provided – minimum requirement met – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, Schedule 2, cl 457.223(4)(eb)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by 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 (the Act).

2. The visa applicants applied for the visas on 12 February 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). 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 stream in cl.457.223 of Schedule 2 to the Regulations, the labour agreement stream.

4. The delegate refused to grant the visas on 14 January 2019 on the basis that the first named applicant, Brazilian national Mr Wesley Sa Pires Dos Reis, did not meet cl.457.223(4)(eb) of Schedule 2 to the Regulations because evidence was not provided to demonstrate that he met the English language requirement. A copy of the delegate’s decision was provided to the Tribunal.

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

6. For the following reasons, the Tribunal has decided that the decision under review should be remitted for reconsideration. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of the applicants on the basis of the material before it pursuant to s.360(2)(a) of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether Mr Sa Pires Dos Reis meets the requirements of cl.457.223(4)(eb) of Schedule 2 to the Regulations.

   English language proficiency

8. The English language requirements for a Subclass 457 visa are set out in cl.457.223(4)(eb) and cl.457.223(4)(ec) of Schedule 2 to the Regulations. They differ depending on the applicant’s circumstances.

9. In the present case, cl.457.223(4)(eb) of Schedule 2 to the Regulations is relevant. It requires that, if the applicant is not an ‘exempt applicant’ as described in 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. The Tribunal is satisfied, based on the material before it, that Mr Sa Pires Dos Reis is not an ‘exempt applicant’ under cl.457.223(11) as specified in IMMI 17/057 for the purposes of cl.457.223(4)(eb)(i) of Schedule 2 of the Regulations. Furthermore, there is no evidence to indicate that Mr Sa Pires Dos Reis will be paid at least a level of salary specified in that legislative instrument. Accordingly, the Tribunal is satisfied that cl.457.223(6) does not apply to Mr Sa Pires Dos Reis for the purposes of cl.457.223(4)(eb)(ii) of Schedule 2 of the Regulations.

11. Since cl.457.223(4)(eb)(i) and (ii) of Schedule 2 of the Regulations do not apply, Mr Sa Pires Dos Reis must have undertaken a language test specified in the legislative instrument and achieved the specified score within the specified period, in a single attempt at the test. The specified tests are: International English Language Testing System (IELTS) test; Occupational English Test; Test as a Foreign Language internet-based test; Pearson Test of English Academic; and, Cambridge English Advanced test where that test was completed on or after 1 January 2015.  The specified period is 3 years from the date of the visa application.  In relation to an IELTS test, the specified minimum score is at least 4.5 for each of the 4 test components of Speaking, Reading, Writing and Listening as well as a minimum Overall Band Score of 5.0. 

12. The delegate’s decision notes that, although Mr Sa Pires Dos Reis was given time to provide information demonstrating that he meets the English language requirements, he did not do so.  Accordingly, the delegate found there was insufficient evidence to demonstrate that Mr Sa Pires Dos Reis met the English language requirement and, as a result, refused the applicants’ Subclass 457 visa applications.

13. On 1 May 2019, the Tribunal wrote to Mr Sa Pires Dos Reis requesting evidence that he meets the English language requirement.  Mr Sa Pires Dos Reis responded to the Tribunal providing evidence of the results from his IELTS test dated 5 May 2019.  The results of his IELTS test indicate he scored 5.0 for Listening, 4.5 for Reading, 5.0 for Writing and 5.5 for Speaking with an Overall Band Score of 5.0.  The Tribunal has independently verified the results of the test.

14. On the basis of this evidence, the Tribunal is satisfied that Mr Sa Pires Dos Reis has achieved at least the minimum specified scores in a single attempt at an IELTS test undertaken in the period of 3 years from the date of his visa application. For these reasons, the Tribunal finds that Mr Sa Pires Dos Reis satisfies the requirements of cl.457.223(4)(eb)(iv) and cl.457.223(4)(eb)(v) of Schedule 2 to the Regulations. Accordingly, Mr Sa Pires Dos Reis satisfies the requirements of cl.457.223(4)(eb) of Schedule 2 to the Regulations.

15. Given the findings above, the appropriate course is to remit Mr Sa Pires Dos Reis’ application for the visa to the Minister for consideration of the remaining criteria for a Subclass 457 visa.

    DECISION

16. 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.

    Katie Malyon

    
    Member

    ATTACHMENT  -  Extract from the Migration Regulations 1994
    
    

    Part 457

    …

    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.

    oOOo