1603283 (Migration)

[2016] AATA 4608

1603283 (Migration) [2016] AATA 4608 (28 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr MAMANDEEP SINGH MAAN
Mrs BALJINDER KAUR MAAN

CASE NUMBER:  1603283

DIBP REFERENCE(S):  BCC2015/1975674

MEMBER:Antonio Dronjic

DATE:28 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 28 October 2016 at 4:12pm

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 2 March 2016 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 9 July 2015. 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 a Cook. 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 delegate found that the first named visa applicant is not mentioned in the classes of persons that are exempt from the English language criteria and has failed, at the time of visa application, to provide evidence of Vocational English.

6. The applicants applied to the Tribunal for review of the delegate’s decision on 11 March 2016 and with the applications submitted a copy of the primary decision record.

7. On 9 October 2016, the applicants’ representative provided to the tribunal legal submissions stating that it is correct that the applicant did not achieve the minimum required score on Pearson’s English test undertaken on 1 July 2015; that the applicant is skilled and reliable employee and his inability to work will adversely impact his employer; referred to the High Court decision in Berenguel v MIAC [2010] HCA 8; stated that the applicant achieved required results at Pearson English test undertaken on 10 July 2015 (after the visa application was lodged with the department) and those results should be accepted by the Tribunal.

8. The first named applicant appeared before the tribunal on 11 October 2016 to give evidence and present arguments. The applicant was represented in relation to the review by his registered migration agent who attended the hearing. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

9. The applicant confirmed his personal details and current residential address. He gave evidence that the application for subclass 186 visa was lodged with the department on 9 July 2015 and that, at the time of visa application, he did not provide documentary evidence of having Vocational English. He gave evidence that he was misled by his former migration agent who advised him that the test results achieved on Pearson’s’ test undertaken on 1 July 2015 and provided to the department with the visa application were sufficient.

10. He stated that he had undertaken another Person’s test on 10 July 2016, just one day after lodgement of the visa application, and managed to achieve the desired results. I explained to the applicant that the results achieved on the test undertaken after lodgement of the visa application cannot be taken into account for the purposes of meeting cl.186.222 and that Berenguel’s case, referred to in his representative submissions, is not applicable in this matter as his visa application was lodged after 1 July 2011.

11. He further stated that his migration agent advised him that the Pearson’s’ English language test results of 1 July 2015 were sufficient and that he must lodge the visa application while his subclass 457 visa was still valid. (He stated that his 457 visa was to expire on 14 July 2015).

12. He conceded in his evidence that he cannot meet cl. cl.186.222 of Schedule 2 to the Regulations. I suggested that he should consider making a request to the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

13. I invited the applicant to provide submissions and documentary evidence in support of the request that this tribunal refers the matter to the Minister for exercise of his discretion. I granted the applicant additional time until 18 October 2016. I indicated that I will consider the request, and depending on submissions and supporting evidence, decide whether to refer the matter to the Minister. I further noted that, he can make request to the Minister even if the Tribunal decides not to make referral.

14. On 18 October 2016, the applicant submitted:

    ·Statutory Declaration from Syed Zaidi, the applicant’s employer, dated 18 October 2016, in which the employer attested to the applicant’s skills and contribution to his business;

    ·Formal request for the Tribunal to refer the matter to the Minister together with Submissions stating that the applicant had lived in Australia for over eight years, that applicant has been working with the employer for more than three years as a cook and that his employer will suffer financial hardship if the Minister doesn’t intervene in this matter; that the applicant achieved requested results in a test undertaken only one day after the visa application was lodged.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

16. 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 relevant legislative instrument.

17. ‘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.

18. For visa applications made on or after 1 January 2015, 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); or a score of 14 for speaking, 4 for reading, 14 for writing and 4 for listening in the Test of English as a Foreign Language internet-based Test (TOEFLiBT); or PTE Academic test score of at least 36 in each of the four test components; or a Cambridge English: Advanced (CAE) test score of at least 154 in each of the four test components of listening, reading, writing and speaking.

19. Based on the evidence before me I find that the application for subclass 186 visa was lodged with the department on 9 July 2015. Based on the Person’s English test Report from 1 July 2015, I find that the applicant has achieved a reading score of 34 on this test. The requirement for Vocational English was that the applicant must achieve the score of 36 on each of the four components of the test.

20. There is no evidence before me nor did the applicant claim that he had undertaken any of the other tests prescribed by the relevant instrument in the three years preceding the visa application and achieved a specified score.

21. The specified passports are a passport of the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland. Based on the evidence before me I am satisfied that the first named applicant is a holder of Indian passport.

22. The classes of people who are exempt from the English language requirement in the TRT stream under the relevant instrument are specified in the relevant legislative instrument IMMI 15/083. These include 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.

23. There is no evidence before me nor did the applicant claim that he is earning more than $180,000 or that he completed at least five years full-time study in a secondary and/or higher education institution where all the tuition was delivered in English.

24. Accordingly, I find that, at time of visa application, the applicant was not in the specified class of exempt persons, nor did he hold a specified passport.  I further find that the applicant has not achieved the specified score in a specified language test in the three years preceding the visa application. Therefore, cl.186.222 is not met.

25. 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.

26. In addition, the tribunal must affirm the decision to refuse subclass 186 visas to the second applicant (the applicant's wife ) as it finds that she cannot meet the secondary visa criteria to be a family unit member of a person who meets the primary criteria for a subclass 186 visa, and there is no evidence to indicate that she meet the primary visa criteria in her own right.

27. The applicants requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicants, if the Minister thinks that it is in the public interest to do so.

28. The Tribunal refers to the submissions provided by the applicant’s representative, documents submitted in support of the request for referral to the Minister and oral evidence given by the applicant one during the hearing, which in the view of the Tribunal suggest compelling and compassionate reasons giving rise to one or more of the following unique and exceptional circumstances set out in the Minister’s guidelines on ministerial powers and in particular circumstances where the application of relevant legislation leads to unfair or unreasonable results in a particular case and the length of time the person has been present in Australia and their level of integration into the Australian community.

29. The Tribunal is of the view that it would be appropriate for the Minister to consider intervening in this matter on public interest grounds pursuant to s 351 of the Act. That is, of course, a matter entirely at the Minister’s discretion.

    DECISION

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

    Antonio Dronjic
    Member