Stefanczuk (Migration)

Stefanczuk (Migration) [2017] AATA 2021 (9 October 2017)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Leszek Stefanczuk
CASE NUMBER:  1705920
DIBP REFERENCE(S):  BCC2016/1992352
MEMBER:Alison Mercer
DATE:9 October 2017
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Statement made on 09 October 2017 at 12:55pm

CATCHWORDS
Migration – Temporary Business Entry (Class UC) visa – English language proficiency – Not exempt – Evidence not provided

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

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision of a delegate of the Minister for Immigration to refuse to grant the visa applicant a Temporary Business Entry (Class UC) visa under s.65 of the Migration Act 1958 (the Act).
The visa applicant applied for the visa on 8 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.
The delegate refused to grant the visa on 8 March 2017 on the basis that cl.457.223(4)(eb) was not met, as the applicant was not exempt from having to demonstrate his English proficiency but had not (despite several requests from the Department) provided evidence of having sat a specified English test in which he obtained the required scores. The delegate noted that the applicant had provided several receipts for English test bookings but had not provided the results of any of them.
The Tribunal received a review application from the applicant on 24 March 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Ms Catherine Higgins, as his representative and authorised recipient for correspondence.
On 24 July 2017, the Tribunal wrote to the applicant via his agent to invite him to participate in a telephone hearing on 14 August 2017. In addition, the applicant was requested to provide evidence that he was the subject of an approved business nomination by a standard business sponsor, or that such an application was pending with the Department. The letter noted that under the Regulations, a business nomination approval expired after 12 months (if it had not already ceased for another reason). The applicant was also asked to provide evidence that he met the English proficiency requirement applicable to him, or alternatively, information that demonstrated that he was exempt from having to do so. The applicant was asked to provide the above information at least 7 days before the hearing.
The applicant participated in a telephone hearing with the Tribunal on 14 August 2017 to give evidence and present arguments. The Tribunal also received submissions from his agent.
The applicant’s agent also provided an email submission on the day of the hearing, in which she advised that the applicant was the subject of an approved nomination by his present employer, who supported his application. The agent indicated that the applicant did not yet have functional English, but that she understood that he intended to sit an International English Language Testing System (IELTS) test and a PTE Academic English test in Indonesia between 23 August 2017 and 26 August 2017, and would be in a position to make an offshore visa application, hopefully prior to the expiry of his bridging visa. The agent stated that it was understood that the visa could not be granted at the hearing but that the applicant and his employer simply hoped for sufficient time to receive the English test results so that a new application could be made and the visa granted.
The attached document is a letter from the Department dated 9 December 2016 approving International Catering and Accommodation Services Pty Ltd’s nomination of the applicant, referring to the fact that International Catering and Accommodation Services Pty Ltd is an approved standard business sponsor. The nomination is expressed to cease after 12 months, unless a range of specified events occur before that date.
At the hearing, the applicant and his agent conceded that the applicant did not fall within any of the exemption categories that would mean that he did not have to demonstrate his English proficiency by way of a specified score in a specified test. The applicant said that he had done previous PTE Academic and IELTS tests in which he had come close to obtaining the required scores and was confident that he could pass 1 or both these tests when he sat them again in Indonesia shortly. The applicant clarified that he booked to sit the tests in Indonesia because he was able to get a booking earlier than in Australia, and due to its proximity to his location in South Hedland in remote regional Western Australia.
The Tribunal discussed with the applicant and his agent the fact that occupational caveats had been introduced in April and July 2017, which potentially affected the applicant’s nominated occupation of Cook, as the caveats excluded some Cook positions depending on the nature of the establishment in which the position was located. The applicant and his agent said that they believed the nominated position would not be affected by any caveats as it was in a proper restaurant located in a hotel in South Hedland.
After some discussion, the Tribunal agreed to defer its decision after the hearing until 11 September 2017 to allow the applicant to sit the proposed English tests and provide the results to the Tribunal.
The applicant and his agent did not provide any test results to the Tribunal by 11 September 2017, nor any other communication.
On 5 October 2017, the Tribunal wrote to the applicant’s agent via email to advise that it had not received the applicant’s English test results by 11 September 2017, as agreed, and that it now proposed to make its decision by the end of the week. The agent was asked to provide any additional material that they wanted considered to the Tribunal as a matter of urgency, by 6 October 2017.
The Tribunal received no further communication or documents from the applicant or his agent by 6 October 2017. The Tribunal is satisfied that the email sent on 5 October 2017 was sent to the email address for correspondence nominated by the applicant’s agent, and there is no evidence that that it was not delivered or was undeliverable.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
English language proficiency
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 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.
The Tribunal concurs with the delegate (a copy of whose decision was provided to the Tribunal by the applicant) that the applicant does not fall within any of the categories that would exempt him from having to achieve a specified score in a specified English test within a specified timeframe. Specifically, the Tribunal is satisfied that the applicant:
·does not hold a specified passport;
·has not completed a minimum of 5 years of full-time study in a secondary and/or higher education institution where the instruction was delivered in English;
·was not nominated in relation to a specified occupation pursuant to r.2.59 or 2.68;
·was not nominated in relation to an occupation that will be performed at a diplomatic or consular mission of another country or in an office of the Authorities of Taiwan located in Australia;
·has not been nominated in an occupation for which registration, licensing or membership is required, and that registration, licensing or membership requires the applicant to demonstrate an level of English proficiency that is equivalent to the level specified in the relevant legislative instrument for these purposes and the applicant has been granted that registration, licensing or membership; and
·did not make his application before 1 July 2013.
This was not disputed by the applicant or his agent.
The Tribunal finds that the applicant therefore does not fall within any of the exemption categories set out in the current legislative instrument, IMMI 17/057, made for the purposes of cl.457.223(11).
Moreover, the Tribunal is satisfied that there is no evidence that the applicant will be paid the applicable base salary in cl.457.223(6) ($96,400 per year as per IMMI 17/057). The salary listed in the nomination approval from December 2016 is $54,000.
Accordingly, the applicant is not an ‘exempt applicant’ under cl.457.223(4)(eb)(i) or (ii) and is required to satisfy cl.457.223(4)(eb)(iii) and (iv). This in turn requires the applicant to demonstrate that he has achieved in a single attempt a specified test score in a specified English test in a specified period. In relation to this requirement, IMMI 17/057 provides that:
·one of the specified English tests is the IELTS test;
·that the scores that must be obtained in a single sitting of an IELTS test are an overall band score of 5.0, with a minimum score of at least 4.5 in each of the components for listening, reading, speaking and writing;
·another specified test is the PTE Academic test;
·the scores that must be obtained in a single sitting of a PTE Academic test are an overall band score of at least 36, with a minimum score of at least 30 in each of the components for listening, reading, speaking and writing; and
·the above scores must have been obtained by an applicant in the period of 3 years from the date of the visa application.
At the time of the delegate’s primary decision, the applicant had not provided evidence of having undertaken an IELTS test (or any other specified test) in the relevant period in which he had obtained the specified scores.
At the hearing, the applicant told the Tribunal that he was aware that he had to sit a specified test and achieve the required scores in order to meet the requirements for a subclass 457 visa, and that he intended to sit an IELTS test and a PTE Academic test in late August 2016 in Indonesia. He indicated that he had sat previous ones and had come close to achieving the required scores.
However, despite the Tribunal’s request, he failed to provide his IELTS test results to the Tribunal after the date on which the IELTS test administrators indicate they would be available (11 September 2017 for a test taken between 23 and 26 August 2017, noting that this would also have allowed him sufficient time to provide his PTE Academic test results, as they are generally released a day after the test is undertaken). Nor did he provide any reason why he was unable to do so.
Accordingly, there is no evidence before the Tribunal to indicate that the applicant has obtained the specified scores in an IELTS test or a PTE Academic test (or indeed in any other English tests specified in IMMI 17/057) at the time of the Tribunal’s decision.
As a result, the Tribunal finds that the applicant does not satisfy the requirements of cl.457.223(4)(eb).
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
The Tribunal affirms the decision not to grant the visa applicant a Temporary Business Entry (Class UC) visa.
Alison Mercer
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.

[2017] AATA 2021

9 October 2017

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

Remedies