Zheng (Migration)

[2020] AATA 5001

Zheng (Migration) [2020] AATA 5001 (10 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zebiao Zheng
Mrs Ruihua Liu
Mr Rongjun Zheng

CASE NUMBER:  1836047

DIBP REFERENCE(S):  BCC2017/4400879

MEMBER:Jennifer Cripps Watts

DATE:10 September 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 3:22pm on 10 September 2020

CATCHWORDS

MIGRATION – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – English language requirement – IELTS Test result – decision under review affirmed         

LEGISLATION

Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2 cls 457.223, 457.224, 457.321; r 1.12

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 (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 visa on 22 November 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 21 November 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 requirement for the grant of a Subclass 457 visa.

5. On 3 September 2020 the Tribunal sent the applicants an invitation to attend their hearing, scheduled on 21 September 2020.  It was explained in the written invitation that, due to the need to slow the spread of COVID-19, the hearing would not be face to face, but by phone.  The applicant was asked to provide any documents he wished to be considered relating to the issue on the review at least 7 days prior to the hearing, including in bold that he should provide the Tribunal with a copy of his most recent English language test meeting the minimum requirements (as required to meet cl.457.223(4)(eb)).

6. On 10 September 2020, in response, the applicants informed the Tribunal in writing that they were declining the invitation to take part, or participate, in their scheduled hearing and acknowledging with a tick the following in the written response received by email:

   ‘No, I will not participate in the hearing, and consent to the Tribunal making a decision on the papers without taking further steps to allow me to appear’

7. In the circumstances, having complied with its obligations under s.360 of the Act, the Tribunal cancelled the scheduled hearing and proceeded to make a decision on the evidence before it material to the issue on the review, which is the same issue on which the applicant’s visa was refused, that is, not meeting the English language requirement.

8. The applicants were represented in relation to the review by their registered migration agent, Mrs Fang Tina Tang-Clark.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies cl.457.223(4)(eb).  He must have undertaken an English language test three years from the time of the visa application and achieved the minimum score specified by the Minister in a legislative instrument, or be exempt from the requirement to take the language test.

11. The secondary applicants must meet the secondary criteria (cl.457.321) at the time of decision.  Essentially, they must be members of the family unit (as defined in r.1.12 of the Regulations) of the primary visa applicant, who has satisfied the primary criteria and holds a Subclass 457 visa.

12. Prior to constitution of the applicant’s case to this member, the Tribunal registry sent the applicant a letter, on 22 June 2020, requesting, among other things, that they provide evidence of having taken, or a booking for, an English language test, or details of any claim as to why the English language requirements do not apply in their case.

13. In response, on 16 July 2020, the applicant provided the Tribunal with evidence of having paid for and booked an IELTS for 22 August 2020.  The results of this test have not been provided to the Tribunal; nor any other English language test meeting the minimum requirements to satisfy cl.457.224(eb).  The applicant has made no claim made that the requirement does not apply on the basis that the applicant is an exempt applicant (cl.457.224(eb)(i)).

14. On 3 September 2020, the Tribunal sent the applicant an invitation to attend a hearing, scheduled for 21 September 2020.  Included in the invitation was a request that the applicant provide evidence prior to the hearing of his English language test results meeting the minimum requirements for the purpose of meeting cl.457.224(eb).

15. As mentioned earlier, the applicants declined the hearing invitation and explicitly consented to the Tribunal making a decision on the papers. 

    English language proficiency

16. 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, relevant to this case, that the applicant must achieve at least the minimum scores (as specified in the relevant legislative instrument, provided below) in the period of three years from the date of the visa application.

17. The relevant instrument is IMMI 17/057, which specifies the following scores (extracted) that need to be achieved for the purpose of meeting cl.457.223(4)(eb) of Schedule 2 to the Regulations for the grant of a Subclass 457 visa:

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. In certain circumstances, an applicant may claim exemption from having to satisfy the English language requirement.  There is no evidence before the Tribunal, nor has any claim been made, that the applicant is an exempt applicant.  The applicant has not, despite at least two recent requests from the Tribunal to do so, in June and September 2020, provided results of an English language test meeting the requirements of cl.457.224(eb).

2. For these reasons, the applicant does not satisfy the requirements of cl.457.223(4).

3. 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.

   Secondary applicants

4. As the Tribunal has affirmed the decision to refuse the Subclass 457 visa for the applicant, the decision to refuse the visas of the secondary applicants must also be affirmed.

   DECISION

5. 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.