Sikander Singh (Migration)

[2020] AATA 4880

Sikander Singh (Migration) [2020] AATA 4880 (5 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr SIKANDER SINGH
Ms KULWINDER KAUR
Master RANDEEP SINGH
Miss PRABHDEEP KAUR

CASE NUMBER:  1803016

DIBP REFERENCE(S):  BCC2017/955551

MEMBER:Cathrine Burnett-Wake

DATE:5 October 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 5 October 2020 at 11:14am

CATCHWORDS
MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – standard business sponsorship – English language proficiency – sat multiple IELTS exams – required minimum score not achieved – 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 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 10 March 2017.

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 17 January 2018 on the basis that cl.457.223(4)(eb) was not met because the applicant did not meet the English language requirements.

5. The applicants appeared before the Tribunal on 30 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Labh Singh, the applicant’s employer. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

6. The applicants were represented in relation to the review by their registered migration agent, however the migration agent was not present at the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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. It requires that:

   ·     if the applicant is not an exempt applicant as described in IMMI15/028 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.

9. The specified time prescribed in IMMI15/028 at paragraph [4] sets out the period of three years from the date of the visa application is relevant for the purposes of satisfying paragraph 457.223(4)(eb).

10. The applicants applied for the visa on 10 March 2017. As such, and in accordance with IMMI15/028, the specified period the applicant was required to have achieved the required English language proficiency in a single attempt ended on 10 March 2020.

11. The applicant does not meet the salary level specified in the instrument as his salary specified is less than AUD 96,000. As such, he must have achieved in a single attempt a test score within 3 years of lodging the visa application.

12. Although the applicant claims to have sat multiple IELTS exams, there is no evidence before the Tribunal that he has achieved the required test score in any of the exams undertaken. At hearing the applicant conceded that he was yet to achieve the required test score on any exam. Furthermore, the applicant conceded that his registered migration agent advised him that he did not meet the requirements.

13. The applicant’s employer gave evidence that the applicant was a good employee and that English language proficiency was not an issue for farm work. The Tribunal acknowledge the employer’s evidence however, outlined that it was not able to take into consideration the applicant’s suitability as an employee for the purposes of determining whether the applicant met cl.457.223(4)(eb).

14. As the applicant will not be paid at least a level of salary specified in IMMI15/028 and because he has not achieved in a single attempt a test score specified in the instrument within the specified time, he does not satisfy the requirements of cl.457.223(4)(eb).

15. 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.

16. The Tribunal must also affirm the decision to refuse to grant a subclass 457 visa to the second, third and fourth named applicants as they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 457 visa, and there is no evidence that they can meet the primary criteria in their own right.

    DECISION

17. 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.