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1003051 [2010] MRTA  1614  (9 July 2010)

Last Updated: 20 July 2010

1003051  [2010] MRTA 1614  (9 July 2010)

DECISION RECORD

APPLICANTS: Mr Janos Zsolt Szilvasi
Ms Anna Csilla Sarmai
Mr Janos Szilvasi

MRT CASE NUMBER: 1003051

DIAC REFERENCE(S): BCC2010/187877

TRIBUNAL MEMBER: T Delofski

DATE: 9 July 2010

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 (Business (Long Stay)) visa:

• cl.457.223(4)(eb); and
• cl.457.223(4)(ec) of Schedule 2 to the Regulations.
  

STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the applicants Temporary Business Entry (Class UC) visas under s.65 of the Migration Act 1958 (the Act).
2. The applicants applied to the Department of Immigration and Citizenship for Temporary Business Entry (Class UC) visas on 24 July 2009 The delegate decided to refuse to grant the visas on 16 April 2010 and notified the applicants of the decision and their review rights by letter dated 16 April 2010.
3. The delegate refused to grant the visas on the basis that the first named applicant (hereafter referred to as the applicant) did not satisfy cl.457.223(4)(eb) and (ec) of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had the requisite English language proficiency.
4. The applicants applied to the Tribunal on 28 April 2010 for review of the delegate’s decisions.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act and r.4.02(1A) of the Regulations. The Tribunal finds that the applicants have made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. The Temporary Business Entry (Class UC) visa permits non-citizens with skills needed by Australian businesses to enter and work temporarily in Australia. Class UC contains two subclasses, Subclass 456 (Business (Short stay)) and Subclass 457 (Business (Long stay)). Subclass 456 visas permit stays of up to 3 months. Subclass 457 visas permit stays of not more than 4 years, and in the case of an Independent Executive proposing to maintain an ownership interest of a business in Australia, a further stay of 2 years is permitted. The Tribunal does not have jurisdiction in relation to a decision to refuse a Subclass 456 visa.
7. The criteria for a Subclass 457 visa are set out in Part 457 of Schedule 2 to the Migration Regulations 1994 (the Regulations).
8. One of the primary criteria to be satisfied at time of decision is cl.457.223. Only one of the alternative requirements in cl.457.223 must be satisfied. These are:
   • employment in Australia under a labour agreement (LA): cl.457.223(2)
   • standard business sponsorship for employment in a nominated occupation: cl.457.223(4)
   • Independent Executives proposing to maintain their ownership interest of a business in Australia (Independent Executive Further Application Onshore -IEFAO): cl.457.223(7A)
   • service sellers representing overseas companies: cl.457.223(8)
   • persons who will be engaged in diplomatic-type work and entitled to certain privileges and immunities: cl.457.223(9); and
   • for applications made on or after 1 November 2003, employment in Australia under an Invest Australia Supported Skills (IASS) agreement: cl.457.223(10).
9. The applicant in the present case has made specific claims against cl.457.223(4). No claims have been made in respect of the other alternative sub criteria to cl.457.223.
10. Clause 457.223 was substantially amended on 14 September 2009, for all visa applications not finally determined before that date, and applications made on or after that date: Migration Amendment Regulations 2009 (No.9), r.3(6). Clause 457.223(4), as it applies in the present case, provides:

Standard Business Sponsorship

(4) The applicant meets the requirements of this subclause if:

(a) either:

(i) if the applicant and a business activity specified in the application and relating to the applicant were the subject of an approved business nomination under regulation 1.20H as in force immediately prior to 14 September 2009:

(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

(B) the approval of the nomination has not ceased to have effect under subregulation 1.20H (5) as in force immediately prior to 14 September 2009; or

(ii) if a nomination of an occupation in relation to the applicant has been approved under section 140GB of the Act:

(A) the nomination was made by a person who was a standard business sponsor at the time the nomination was approved; and

(B) the approval of the nomination has not ceased as provided for in regulation 2.75; and

Note The definition of occupation in clause 457.111 includes the activity mentioned in subparagraph (i).

(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) if the business activities of the person who made the approved nomination include activities relating to either or both of:

(i) the recruitment of labour for supply to other unrelated businesses; and

(ii) the hiring of labour to other unrelated businesses;

either:

(iii) the occupation is undertaken in a position with a business, or an associated entity, of the person who made the approved nomination; or

(iv) the occupation is specified by the Minister in an instrument in writing for this subparagraph; 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

(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

(ea) if:

(i) the applicant would be required to hold a licence, registration or membership that is mandatory to perform the occupation nominated in relation to the applicant; and

(ii) in order to obtain the licence, registration or membership, the applicant would need to demonstrate a level of English language proficiency equivalent to the level of English language proficiency that is required to achieve an IELTS test score of more than 5 in each of the 4 test components of speaking, reading, writing and listening;

the applicant has proficiency in English of at least the standard required for the grant (however described) of the licence, registration or membership; and

(eb) if:

(i) the applicant is not an exempt applicant; and

(ii) subclause (6) does not apply to the applicant; and

(iii) at least 1 of subparagraphs (ea) (i) and (ii) does not apply;

the applicant has a level of English language proficiency that is required to achieve an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening; 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.

11. In the present case, the visa application was refused on the basis that the applicant did not meet cl.457.223(4)(eb) and (ec).

EVIDENCE AND FINDINGS

12. The Tribunal has before it the Department’s and Tribunal’s case files relating to the applicants. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
13. The Tribunal has received evidence that on 17 April 2010 the applicant re-sat the IELTS test and achieved an IELTS test score of at least 5 in each of the 4 test components of speaking, reading, writing and listening. Based on the evidence, the Tribunal is satisfied that the applicant now meets cl.457.223(4)(eb) and (ec).
14. Given the findings made above, the Tribunal remits the applications for the visas to the Department with a direction that the applicant meets cl.457.223(4)(eb) and (ec).

DECISION

15. 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 (Business (Long Stay)) visa:
    • cl.457.223(4)(eb); and
    • cl.457.223(4)(ec) of Schedule 2 to the Regulations.
      

T Delofski
Member