1502618 (Migration)

[2015] AATA 3438

1502618 (Migration) [2015] AATA 3438 (17 September 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jan Jacobus Karsten
Mr Werner Karsten
Mr Jan Jacobus Karsten

CASE NUMBER:  1502618

DIBP REFERENCE(S):  BCC2014/1863814

MEMBER:Carolyn Wilson

DATE:17 September 2015

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 17 September 2015 at 8:42am

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 11 February 2015 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 30 July 2014. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Electronic Instrument Trades Worker.  This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because the applicant had not demonstrated Vocational English at time of application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant had Vocational English at time of application.

   English language proficiency

8. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have vocational English, or be in a class of persons specified in legislative instrument IMMI 12/059: cl.186.222.

9. ‘Vocational English’ is defined in r.1.15B of the Regulations.  A person will have vocational English if he or she either:

   ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

   ·holds a specified passport.

10. The relevant tests scores and passports for these purposes are specified in legislative instrument IMMI 15/005. For visa applications made on or after 1 July 2012 and before 23 November 2014, the applicant must have achieved an International English Language Test System (IELTS) test score of at least 5 for each of the 4 test components in an IELTS test; or a score of at least 'B' for each of the 4 test components in the Occupational English Test (OET). The specified passports are a passport of the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland.

11. The classes of people who are exempt from the English language requirement in the TRT stream under the relevant instrument are: Ministers of Religion who have been nominated by a religious institution; people whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate (over $180,000 a year); and people who have completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English.

12. The applicant holds a passport of South Africa.  He indicated in his application he had not undertaken an English language test within the last 36 months.  There is no evidence he completed at least 5 years full-time secondary or higher education study in English.   His proposed earnings were not at least equivalent to the current ATO top individual income tax rate.

13. The applicant was therefore required to demonstrate he had achieved the specified scores in a specified language test in the three years preceding the visa application.  Unfortunately the applicant was not aware of this requirement and at time of application he had not undertaken such a test.  He has since provided evidence of achieving the specified results in an IELTS test undertaken 7 February 2015, which is after the date of application.

14. The Tribunal invited the applicant, pursuant to s.359, to provide information that he met the Vocational English requirement at time of application.  The applicant responded with an explanation of why he did not have evidence of Vocational English at time of application, and he asked that he be able to attend a hearing to explain this in detail.  However, as the applicant has not provided the requested information, s.359C applies and the applicant is not entitled to appear before the Tribunal.

15. The Tribunal has no power to invite the applicant to a hearing in these circumstances. The Tribunal notes a hearing would not alter the outcome of this decision.  There is no discretion to waive cl.186.222, regardless of the circumstances. 

16. The Tribunal acknowledges the applicant arranged to undertake the specified language test as soon as the delegate made him aware of this requirement.  However at that time it was too late to satisfy cl.186.222.  Even had the applicant provided his results to the delegate before they made their decision, it would not have changed the outcome as the applicant needed to have sat the test prior to lodging the application.

17. The Tribunal finds that at time of application the applicant was not in the specified class of exempt persons, nor did he hold a specified passport.  The Tribunal finds the applicant has not completed at least 5 years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English. The Tribunal finds he has not achieved the specified score in a specified language test in the three years prior to application. 

18. Therefore, cl.186.222 is not met.

19. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams.  As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

    DECISION

20. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Carolyn Wilson
    Member