Arifin (Migration)

[2017] AATA 2460

Arifin (Migration) [2017] AATA 2460 (22 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Arifin Arifin
Mrs Desi Apriyana
Mr Adrian Arifin

CASE NUMBER:  1713378

DIBP REFERENCE(S):  BCC2016/3438098

MEMBER:Hugh Sanderson

DATE:22 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 22 November 2017 at 10:12am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – English language proficiency – Failed to meet the language requirements – No further evidence – Applicant did not attend the hearing

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 1.15B, Schedule 2 cl 186.222

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 13 June 2017 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 17 October 2016. 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. 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 provided evidence that he had vocational English at the time of the application.

   Background

6. The applicant is a citizen of Indonesia. The second named applicants are his wife and child. The only basis of their applications is that they are members of the family unit of a person who meets the primary criteria.

7. When the application was filed the applicant stated that he had not undertaken an English language test within the last 36 months. The Department wrote to the applicant requesting he provide details to demonstrate that he has vocational English language ability at the time of the application. He was provided with the information required to be provided to satisfy this criteria. The applicant did not respond to these requests from the Department.

8. The delegate who considered the application found that the applicant had not provided evidence that he had vocational English at the time of the application. The delegate found further that the applicant was not among the classes of persons who were exempt from the English-language criteria. Accordingly, the delegate found that the applicant did not meet the criteria in cl.186.222 and refused the application. As the applicant did not meet the criteria for the grant of the visa, the applications of the second named visa applicants as members of his family unit were also refused.

   Information to the Tribunal

9. The Tribunal wrote to the applicant on 26 October 2017 inviting him to attend a hearing before the Tribunal. The applicant was also requested to provide information to demonstrate that he met the English language proficiency requirement applicable to the visa or that he was exempt from the English language requirement.

10. On 8 November 2017 the applicant’s agent provided a response to the hearing invitation stating that the applicants would not attend the scheduled hearing. On 21 November 2017 the applicant’s agent confirmed the applicants were waving their right to attend a hearing and would not provide any further information to the Tribunal. No information was provided by the applicant to show that he met the English-language proficiency requirements.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether the applicant meets the English language proficiency requirements.

    English language proficiency

14. 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 15/005: cl.186.222.

15. ‘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.

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

16. The applicant holds an Indonesian passport. This is not one of the passports that exempts the applicant from providing evidence that he undertook a specified language test in the three years preceding the visa application.

17. In the application, the question “Has the applicant undertaken an English language test within the last 36 months?” is put to the applicant. He answered “No”. The applicant is also asked “Does the applicant have at least functional English language ability?” In answer to this question, the applicant answered “No”.

18. The Department wrote to the applicant on 20 March 2017 requesting that he provide further information in support of the application. Specifically, he was requested to provide evidence of vocational English language ability and provided information of the various means in which to provide this information. He did not respond to the Department’s invitation.

19. The Tribunal wrote to the applicant on 26 October 2017 requesting he provide information to demonstrate he met the English language proficiency requirements. He has not responded to this information.

20. There is no information before the Tribunal that the applicant undertook a specified language test in the three years preceding the visa application and achieved the specified score. Accordingly, the Tribunal finds that the criteria in cl.186.222 is not met.

21. 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.

22. The applications of the second named visa applicants are only based on being members of the family unit of someone who meets the primary criteria. As the applicant does not meet the primary criteria, the second named visa applicants do not meet the criteria of members of the family unit of a person who meets the primary criteria. Accordingly, the decision is to refuse their applications must be affirmed.

    DECISION

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

    Hugh Sanderson
    Member