1512775 (Migration)

[2015] AATA 3970

1512775 (Migration) [2015] AATA 3970 (18 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr HYUNDAE LEE
Mrs YESUK SHIN
Mr SEUNGJUN LEE

CASE NUMBER:  1512775

DIBP REFERENCE(S):  BCC2015/333951

MEMBER:Denise Connolly

DATE:18 December 2015

PLACE OF DECISION:  Sydney

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

Statement made on 18 December 2015 at 1:21pm

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 28 August 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 January 2015. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme). 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.

3. 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 Hardware Technician. 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.

4. The applicants were represented in relation to the review by their registered migration agent.

5. The applicants provided to the Tribunal a copy of the delegate’s decision record. The delegate refused to grant the visas on the basis that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because he did not provide evidence that he had achieved the required scores in an English language test and there was no evidence that he was exempt from meeting the English language criteria.

6. The applicant appeared before the Tribunal on 10 December 2015 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

7. The day before the hearing the applicants contacted the Tribunal stating that they had only just been advised of the hearing. The Tribunal confirmed that the invitation had, on 10 November 2015, been sent to the email of the authorised recipient, their registered migration agent. A courtesy copy was emailed to the applicants. The representative then called and claimed she knew nothing about the hearing as she had been overseas. She wrote to the Tribunal seeking post hearing time. The Tribunal agreed to do this.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

English language proficiency

1. 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.

10.    ‘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.

11.    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

12.    The specified passports are the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland: r.1.15B(2).

13.    The applicant has a passport of the Republic of Korea. There is no evidence that he has one of the specified passports. The applicant therfore does not meet the requirements of r.1.15B(2).

14.    In the visa application the applicant acknowledged that he had not undertaken an English language test in the previous 36 months. He claimed however that he had completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

15.    The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that the applicant claims to have studied in English as follows:

a.Certificate III in ESL April 2007 to July 2007 (3 months)

b.Certificate III in Electrotechnology Refrigeration and Air Conditioning October 2007 – July 2008 (9 months)

c.Certificate III in Electrotechnology Entertainment and Servicing June 2008 to April 2009 (10 months)

d.Certificate IV in Electrotechnology Entertainment and Servicing April 2009 to October 2009 (6 months)

e.Diploma of Electronics October 2009 to March 2010 (6 months).

16.    The delegate noted that the applicant had claimed other study including at the Baguio English Communication Institute from June 2006 to September 2006. However in the absence of evidence of attendance he was not satisfied the applicant had completed this study.

17.    The delegate also noted there were Certificates of Enrolment provided in relation to other courses. However he found for CoE 1BC33444 the applicant was enrolled only from November 2006 to January 2007. For CoE 48B2D938 and CoE 48B2E572 (enrolments at Oxford College) the Department’s records indicate the applicant did not commence the courses. The delegate therefore found that the applicant had completed only 2 years 10 months study in English. He also found that the applicant was not an exempt person who met Class 3 as defined in IMMI 12/059.

18.    At the hearing the Tribunal discussed with the applicant the various ways in which he could met the English language requirement set out in cl.186.222. He confirmed he had not undertaken an English language test and therefore did not have evidence of vocational English. The Tribunal therefore finds the applicant does not have evidence of vocational English as defined in r.1.15B(1).

19.    The Tribunal has also considered whether the applicant is in a class of persons specified by the Minister in IMMI 12/059 (being the relevant instrument in writing for cl.186.222(b)). There are 3 classes of persons specified in the instrument for Subclass 186 applicants, referred in the instrument as Class 1, Class 2 and Class 3. The applicant confirmed he is not a Minister of Religion and so does not come within Class 1. There is no evidence before the Tribunal that he would be earning at least $180,000, the current Australian Tax Office top individual income tax rate as required to meet the definition of Class 2. He confirmed this at the hearing. The Tribunal is not satisfied the applicant is a person in Class 2. 

20.    The applicant has claimed that he has completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. However when asked at the hearing about the study he has completed in English, his evidence was vague and lacking in detail. He indicated he studied in the Philippines before he came to Australia but he could not remember the details. The Tribunal ultimately ascertained this was the study undertaken at Baguio English Communication Institute. He thought this was completed from July 2006 to September 2006 although he had no evidence to support this assertion. He was vague about his other study in English. When the Tribunal went through the claims set out above he indicated he had undertaken some of the study but he did not complete the study at Oxford College because the courses did not suit him. He had no other evidence to give to the Tribunal about his study in English. When asked about this he said he wanted to sit an English language test. The Tribunal explained that there was no utility in waiting for this as any English language test sat after the visa application would not meet the definition of vocational English, as he needed to sit the test in the 3 years immediately before the visa application.

21.    After the hearing the applicant’s representative contacted the Tribunal and asked for more time to lodge further evidence. The Tribunal agreed to wait until close of business 14 December 2015. No further evidence was provided. On 17 December 2015 the representative called the Tribunal and said she was going to send documents on that day. However the Tribunal has not received any further evidence from the applicant or the representative. It has decided in the circumstances, where the applicant has had a fair opportunity at his hearing to give his evidence about his study in English, to now proceed to make its decision.

22.    Having considered the applicant’s evidence about the study he has completed in a secondary and/or higher education institution where all of the tuition was delivered in English, the Tribunal is not satisfied he has completed 5 years of full-time study in English. The Tribunal finds, at most, he may have completed approximately 3 years’ study in English. The Tribunal is not satisfied the applicant is a person in Class 3 of IMMI 12/059. 

23. As the applicant is not in any of the classes of persons specified for the purposes of cl.186.222(b), the applicant therefore does not meet cl.186.222 of Schedule 2 to the Regulations.

24.    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

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

Denise Connolly
Member