Somon (Migration)

[2020] AATA 3899

Somon (Migration) [2020] AATA 3899 (21 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Phanit Somon
Mr Chakat Tontecha

CASE NUMBER:  1827893

DIBP REFERENCE(S):  BCC2017/3092479

MEMBER:Jennifer Cripps Watts

DATE:21 September 2020

PLACE OF DECISION:  Sydney

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

Statement made on 21 September 2020 at 5:35pm

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visa – Subclass 457 (Temporary Work (Skilled)) – English language requirements – sat for specified language test within three years before application made, but did not gain required score – did not sit for test shortly before hearing because of suspected symptoms of COVID-19 – booked for test scheduled soon after hearing – request for adjournment of hearing not granted – claim of five years of education in English – inconsistent oral evidence and no documentary evidence – held student visas for less than five years – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359AA

Migration Regulations 1994 (Cth), Schedule 2, cls 457.223(4)(eb), 457.311

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 (the delegate) 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 27 August 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 5 September 2018 on the basis that cl.457.223(4)(eb) was not met because the primary applicant (the applicant) did not meet the English language requirements.  The secondary applicant’s visa was refused because they did not meet the secondary criteria (cl.457.311), which requires them to be a member of the family unit of a person who has been granted and who holds a Subclass 457 visa.

5. On 3 September 2020, the applicant was invited in writing to attend a scheduled hearing on 21 September 2020.  On 7 September 2020, the applicant requested an adjournment of the hearing on the basis that she had not sat for an IELTS English language test that was booked on 22 August 2020 because at the time the applicant suspected she might have been displaying symptoms of COVID-19.  Emails between the applicant and examination body were provided indicating that another test had been booked at a later time, on 24 October 2020.

6. The Tribunal considered the request for adjournment of the hearing for the reason given.  The hearing was scheduled to take place by phone due to COVID-19 restrictions on face to face hearings.  The Tribunal decided not to grant the request.  The applicant was informed in writing that the Tribunal hearing would go ahead on 21 September 2020 and that the issue on the review would be discussed, that is, whether the applicant has met the requirements of cl.457.223(4)(eb) within three years of the date of the visa application, together with any further request for adjournment. 

7. The applicant appeared before the Tribunal on 21 September 2020 to give evidence and present arguments. The Tribunal also received oral evidence from an authorised representative of the nominating company, Gold Leaf Thai, (the sponsor), Janny Kietprasert.  The Tribunal hearing was conducted with the assistance of an interpreter in the Thai and English languages.  About 15 minutes or so before the hearing concluded, the connection with the interpreter was lost and they could not be contacted, despite the numerous attempts that were made.  The applicant indicated she was happy for Ms Kietprasert, who speaks both fluent Thai and English, to translate for her for the remainder of the hearing.  The Tribunal was satisfied that this was an appropriate and reasonable course of action, in the circumstances, and is confident that the applicant understood what was being discussed and that Ms Kietprasert was capably assisting the applicant. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the primary visa applicant meets the requirements of cl.457.223(4)(eb), or whether she is an exempt applicant, the determinative issue on which the visa was refused.  In addition, at the hearing, the applicant claimed that she is an exempt applicant and asked that the Tribunal consider the claim.  Relevantly, an applicant for a Subclass 457 visa, in the circumstances of this case and at the time of this decision, unless they are an exempt applicant, must have undertaken a language test specified by the Minister in a legislative instrument and have achieved the minimum scores specified within three years of the date of the visa application.  The applicant was informed that the Tribunal would have regard to and consider documentary information and oral evidence material to the issue on the review in reaching its decision. 

10. On 3 September 2020, the applicant had requested a postponement of her hearing scheduled for 21 September 2020 because she had booked an English language test for 24 October 2020.  At the scheduled hearing, the Tribunal explained to the applicant that her request for postponement was refused because, in considering the request, it appeared to the Tribunal that the applicant could not meet the English language criteria because she was intending to sit a test on a date that would be outside the specified three year period.  The applicant had someone assisting her at the Tribunal, but not a migration agent, and it was considered to be an appropriate course of action to have the applicant attend the hearing so that this issue, and any others, could be fully canvassed with her before a decision was made, including whether a postponement was justified or needed.

11. It was explained to the applicant in detail that the requirements are, in summary, that she must provide evidence of having successfully undertaken English language test during the period of three years from the date of the visa application, unless she is an exempt applicant, which it appeared she was not; and that it must be one of the tests in the instrument as specified by the Minister, for example IELTS or one of the others.

12. At the hearing, the applicant raised concerns about her former migration agent and claimed that they did not provide all her documentary evidence at the time of application, and that they did not tell her of the three year timeframe from the date of application during which she needed to demonstrate that she meets the English language requirements.  The sponsor raised the same concerns in her oral evidence.  In addition, the applicant claimed at the scheduled hearing exemption from having to provide such evidence on the basis of having ‘…completed a minimum of five years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English’:  s.11(b) in legislative instrument IMMI 17/057, in a course specified by the Minister (for the purpose of meeting cl.457.223(4)(eb)).  No claim had previously been made by the applicant, nor had any evidence been provided, in support of the study exemption, either at the time of application, or to the Tribunal.  This claim was discussed at the scheduled hearing at length and in great detail. 

13. At the hearing, the Tribunal pointed out that, in her visa application, the applicant answered the English language study question (at p.10 of her online application) by indicating that she had studied in the English language from May 2010 to November 2010, which is about six or seven months.  The applicant again referred to her former migration agent’s failure to provide accurate or complete information and reiterated her claim that she had studied for five years.  It was put to the applicant that, without any verifiable evidence, the Tribunal would be unlikely to accept that she had studied in the English language for five years, partly on the basis of the answer she had given in her visa application, the lack of evidence to support the claim, and also due to internal inconsistencies in her oral evidence at the hearing when the applicant was asked to provide details of the study, such as dates when she studied.  For example, early in the hearing the applicant said she had no documents to prove she studied for five years, that she had tried to obtain them, but that the college where she studied had shut down.  Later in the hearing, the applicant requested time to provide study documents and, when reminded that she had earlier said she didn’t have any, responded that she did because she had sent copies to her former migration agent and kept the originals.  In addition, when asked at the hearing when she had studied, the applicant said that her first student visa was granted in November 2009 and was for six months, then the next for two years and a further student visa for another two years.  The Tribunal put to the applicant that this added up to less than five years, to which the applicant responded she had studied for five years.

14. The applicant had earlier explained at the Tribunal hearing that she had tried to obtain her academic history from the education institution, Royal Brisbane Institute of Technology, but that it had closed down, so she was not able to provide any documentary evidence to substantiate her claim of having studied for five years.  It was put to the applicant that this late declaration by her claiming that she is an exempt applicant on the basis of five years’ full-time study, without any documentary evidence and because it had not been raised at the time of application, did not, in her circumstances, seem to be credible. 

15. The applicant provided the Tribunal, among other things, with a notice of the sponsor’s nomination approval, dated 27 August 2013.  In seeking to understand when the applicant may have ceased study, the applicant was asked if she was granted a Subclass 457 visa relating to the nomination approval; the applicant said she couldn’t remember.

16. Because the applicant’s memory was not clear as to when she commenced and completed her study, and nor did her ability to remember whether or when she had been granted an earlier Subclass 457 visa, the Tribunal did an ICSE search during the hearing which revealed that the applicant had been granted a Subclass 457 visa on the same date the nomination was approved, 27 August 2013.  According to the ICSE record, the applicant’s first student visa was granted in November 2008, not 2009; no negative weight is given to this inconsistency.  The applicant held consecutive student visas until 25 June 2013, when her Subclass 457 visa application appears to have triggered a Class A bridging visa approval; around two months later the 457 visa was granted.   

17. The Tribunal, in compliance with the requirements of s.359AA of the Act, put to the applicant that although she claimed to have studied full-time in English for ‘at least five years’, that her migration records indicated that she held student visas for less than five years and it appeared she had not studied full-time for at least five years, and that this would be a reason or part of the reason for affirming the decision to refuse her visa; because she was not an exempt applicant as claimed and had not provided evidence of otherwise meeting the English language requirements as specified. 

18. The applicant was advised by the Tribunal, essentially, to wait until the adverse information had been explained, the particulars of it provided, and the consequences of the Tribunal relying on the information given to her before responding.  Once explained, the Tribunal invited the applicant to seek additional time to comment on or respond to the information.  The applicant elected to respond in her oral evidence at the hearing and said that she agreed she had not studied for ‘at least five years’.   The Tribunal records that the applicant was simply mistaken as to the length of time she studied and notes that although the length of time was not substantially less than five years, being some five or six months, that it was not ‘at least’ five years of full-time study.

19. Together with the response to the hearing invitation, the applicant provided copies of:

    a.IELTS test dated 24 June 2017, with an overall score of 4.0

    b.Letters from her employer dated 17 July 2020, indicating they consider her to be a valuable employee and confirming that the applicant has booked an English test

    c.Department notification of Gold Leaf Thai’s 27 August 2013 approval of nomination

    d.Employment contract between Gold Leaf Thai and the applicant

    e.Recent statements of support from co-workers at Gold Leaf Thai

20. The Tribunal informed the applicant that it was acknowledged that she had favourable references and statements from her employer and work colleagues, but that this information was not material to the issue on the review relating to the English language requirement.

21. On the evidence provided prior to the Tribunal hearing, that the applicant last took an English language test on 24 June 2017, in which she did not achieve the minimum overall score.  The applicant was asked whether she has taken any English language test, specified by the Minister in IMMI 17/057, from when she applied for the visa up to 27 August 2020; the applicant responded that she took a PTE test about three years ago, but that she was not successful in meeting the minimum requirements, and she has not taken another specified English test since then.  The applicant did not provide a copy of the PTE test, but the Tribunal accepts her oral evidence, as it is reasonable to think that if the requirements were met, it would have been provided in support of the review application.

22. The sponsor gave oral evidence largely consistent with the applicant’s evidence that she did not know about the three years requirement and that the former migration agent had provided misleading advice, or neglected to provide advice at all, about certain matters.  The sponsor said that if they had known about the three years, the applicant would not have cancelled the test on 22 August 2020.

    English language proficiency

23. 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). It requires that an applicant has undertaken a language test specified by the Minister in a legislative instrument for this subparagraph (relevantly, IMMI 17/057); and has achieved within the period specified by the Minister in the instrument (s.9; 3 years from the date of the visa application), in a single attempt at the test, the score specified by the Minister in the instrument.  The specified tests are contained in the following chart, extracted from IMMI 17/057:

English test	Minimum band score	Minimum scores for English test components
		Listening	Reading	Speaking	Writing
IELTS test	Overall band score 5.0	4.5	4.5	4.5	4.5
OET	-	B	B	B	B
TOEFL iBT	Total band score 36	3	3	12	12
PTE	Overall band score 36	30	30	30	30
CAE	Overall band score 154	147	147	147	147

1. The Tribunal is satisfied the applicant is not an exempt applicant as described in the relevant instrument and must therefore have achieved, in a single attempt, a test score specified in the instrument within three years of the date of the visa application.

2. The visa application was made on 27 August 2017.  The applicant has provided no evidence of having satisfied the English language requirement as described in the relevant instrument, in the three years since the visa application was made.

3. For these reasons, the applicant does not satisfy the requirements of cl.457.223(4)(eb) of Schedule 2 to the Regulations.

   Secondary applicant

4. At the time of decision, the secondary applicant must be a member of the family unit of a person (the primary applicant) who, having satisfied the primary criteria, is the holder of a Subclass 457 visa:  cl.457.321  As the Tribunal has affirmed the decision to refuse the applicant’s Subclass 457 visa, the decision to refuse the visa of the secondary applicant must also be affirmed.

5. 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.

   DECISION

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

   Jennifer Cripps Watts
   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.