1911052 (Migration)

[2019] AATA 3145

1911052 (Migration) [2019] AATA 3145 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1911052

MEMBER:Mr S Norman

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2019 at 3:28pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Cabinet Maker – English language proficiency – did not achieve specified IELTS test score – time of visa application criteria – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), rr 1.15B, 1.15C; Schedule 2, cl 186.222

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information

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 Home Affairs on 16 April 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 30 June 2018. 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 Labour Agreement stream.

3. In the present case, the first named applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated occupation of Cabinet Maker.

4. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations – English language proficiency.

5. The first named applicant appeared before the Tribunal on 23 July 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr [A] (an accountant). The Tribunal hearing was conducted with the assistance of an interpreter in the Arabic (Lebanese) and English languages.  The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

7. On 30 June 2018, the first named applicant (hereafter the applicant) lodged an application for a Subclass 186 visa under the Temporary Residence Transition Stream. This related to an appointment as a Cabinet Maker.

8. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 18/045: cl.186.222. Clause 186.222 stated:

   186.222 

   At the time of application, the applicant:

   (a)  had competent English; or

   (b)  was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

9. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.1.15C of the Regulations. For both levels, a person will meet the definition 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. In this instance, having regard to the date of the visa application, the required level is competent English. Regulation 1.15C stated:

    (1)  A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the person is an applicant for a visa; and

    (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and

    (c)  the person achieved a score specified in the instrument.   

    (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

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

    5.  SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:
    …..
    D - for paragraph 1.15C(1)(a), the following language tests:

    i.an International English Language Test System (IELTS) test; or

    ii. an Occupational English Test (OET); or

    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv. a Pearson Test of English Academic (PTE Academic); or

    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.- for paragraph 1.15C(1)(c) the following test scores:
    i. an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or
    ii. an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or
    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or
    iv. a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or
    v. a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading, writing and speaking.

    F.- for subregulation 1.15C(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

12. Furthermore, IMMI 18/045 stated (in part):

    Part 2 - 10 Exemptions to ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa

    For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.  

13. After a request was made by the Department, and on 5 April 2019, the applicant provided a test report for an IELTS test undertaken on 15 February 2014:

    ·Listening           – 5.0

    ·Reading            – 3.5

    ·Writing              – 5.0

    ·Speaking          – 7.0 

14. In the hearing invitation letter dated 17 June 2019, the Tribunal also stated the following:

    Please provide, prior to the hearing, evidence that you meet the English language requirements in relation to the visa which is the subject of the review.

15. Based on the evidence before them, the delegate (and now the Tribunal) was not satisfied the applicant achieved an IELTS test score of at least ‘6’ in each of the four test components of speaking, reading, writing and listening. Therefore, the above test results cannot be considered to be satisfactory evidence that at the time of visa application (being 30 June 2018) the applicant had competent English.

16. The delegate (and now the Tribunal) noted the applicant had provided evidence they had booked a new IELTS test for 27 April 2019. However, as this requirement is a time of visa application criteria, future tests cannot be taken into consideration. Based on the evidence, the Tribunal is not satisfied the applicant undertook a specified language test, and achieved a specified score, in the three years preceding when the visa application was lodged (being 30 June 2018).

17. Next, the delegate (and now the Tribunal) noted the applicant had declared in their online visa application form that they only held Lebanese citizenship; and they provided evidence of their Lebanese passport ([passport number]). The delegate (and now the Tribunal) finds that Lebanese passports were not listed in IMMI 15/005, and therefore the applicant is not exempt from meeting English language proficiency on this basis.

18. Next, the Tribunal has no evidence the applicant had completed five years of full-time study in a secondary or higher education institution where all tuition was delivered in English. Therefore, the applicant does not meet this exemption.

19. After considering all the evidence and findings herein, the Tribunal is not satisfied the applicant met cl.186.222(a) or (b).  Therefore, cl.186.222 is not met.

20. Next, the Tribunal considered cl.186.311 - member of the family unit. However, as none of the applicants satisfied the primary criteria for the grant of the visa, none were able to satisfy cl.186.311.

21. The applicant had 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.

    Non-compellable humanitarian discretion

22. Section 351 of the Act gives the Minister a 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.

23. The Tribunal has considered the applicant’s case and the Ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer this matter. However, the Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Mr S Norman

    Member