Bacagan (Migration)

[2017] AATA 334

Bacagan (Migration) [2017] AATA 334 (21 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Aris Bacagan
Ms Janet Astibe Bacagan

CASE NUMBER:  1617433

DIBP REFERENCE(S):  BCC2016/1326766

MEMBER:Karen Synon

DATE:21 February 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the first named applicant a Employer Nomination (Permanent) (Class EN) visas.

DECISION:The Tribunal does not have jurisdiction in relation to the second named applicant.

Statement made on 21 February 2017 at 2:17pm

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – No evidence of vocational English – Did not sit IELTS test at time of application – Not a person exempt from English language criteria – Request for Ministerial intervention – Circumstances not exceptional or unique for referral to Minister

LEGISLATION
Migration Act 1958, ss 5(1), 65, 338(7A), 347(2), 347(2)(a) and (3A), 351
Migration Regulations 1994, Schedule 2 – cl 186.222, cl 186.222(a) and (b), IMMI 15/005, IMMI 15/015, IMMI 15/083, r.1.15B, r.1.15B (bb), r.1.15B(2)

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 29 September 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 31 March 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 the Temporary Residence Transition stream, to work in the nominated position of ‘Diesel Motor Mechanic’.  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 first named applicant (the applicant) did not meet cl.186.222 of Schedule 2 to the Regulations because he did not satisfy the English language requirement.

6.    The applicant applied for review of the primary decision on 20 October 2016 and provided a copy of the department’s decision to the Tribunal.

7.    The applicant appeared before the Tribunal on 13 February 2017 to give evidence and present arguments.  The Tribunal was assisted by an interpreter in the Tagalog and English languages.  The Tribunal also received oral evidence from Mr Ian McKean the applicant’s employer.  Following the hearing the Tribunal granted until 19 February 2017 for additional submissions to be made by the applicant’s representative.

8.    The applicants were represented in relation to the review by their registered migration agent who was present throughout the hearing.

9.    For the following reasons, the Tribunal has concluded that the decision under review should be affirmed and that it does not have jurisdiction in relation to the second named applicant.

CONSIDERATION OF CLAIMS AND EVIDENCE

Jurisdiction in relation to second named applicant

10. Section 347(2) of the Act specifies who has the right to apply for review of an MRT-reviewable decision. In the case of an MRT reviewable decision described in s.338(7A), an application for review may only be made by the non-citizen who is the subject of the decision and who is physically present in the migration zone when both the primary decision and the application for review are made: s.347(2)(a) and (3A). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

11.      The Tribunal advised the applicant at the hearing that it was of the view that it did not have jurisdiction in relation to the second named applicant as there are no department movement records in respect of her indicating that she has never been onshore at any stage and to make a valid application, the second named applicant must have been in the Australian migration zone when the primary decision was made and at the time the application for review was lodged on 20 October 2016.

12.      The applicant agreed his wife had never been onshore in Australia and, in response to the question of jurisdiction said “that’s ok”.

English language proficiency

13.      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 15/083: cl.186.222.

Does the applicant have vocational English at the time of application?

14.      ‘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.

15.      Information on the visa application and confirmed by the applicant at the hearing is that he holds a passport of the Philippines and no other country and therefore does not hold a passport of a type specified in IMMI 15/015.  As such r.1.15B(2) is not met.

16.      There is no information before the Tribunal to suggest that the applicant or his spouse or de facto partner were invited by the Minister, in writing, to apply for the visa.  The applicant’s representative confirmed at the hearing that neither the applicant nor his spouse or de facto were invited to apply for the visa.

17.      Therefore r1.15B (bb) applies and the applicant must provide evidence of a language test, specified by the Minister that was conducted in the 3 years immediately before the day on which the application was made;

18.      The primary decision records that in his visa application form the applicant declared he did not undertake an English language test within the 36 months immediately prior to the lodgment of the visa application.

19.      The applicant confirmed at the hearing that he had not sat any English language tests and achieved the required level of vocational English before he lodged his visa application.  He indicated that he now understood it was a time of application requirement.  The applicant said there was a misunderstanding with his representative and that’s why it was refused.  The representative’s assistant said he could sit it later but by then it was refused.  He took the IELTS later and thinks it is not his fault.

20.      The applicant provided evidence to the Tribunal of IELTS tests undertaken on 22 October 2016 and 21 January 2017 however neither of these were undertaken at the time of application.

21.      The representative submitted that the wording of vocational English is not relevant to the applicant as it says “at the time of invitation”.  He said the department has waived the English requirement on the transition stream for 186 visas and look at the applicant’s duration of employment in other cases.  The Tribunal read out the exact wording of r.1.15B and explained what this meant.  However, as the representative continued to maintain this was not relevant to the applicant, the Tribunal granted time following the hearing to make a written submission on the issue.  After the hearing the applicant’s representative did provide a submission but did not address the substantive issue on review.  Rather the submission entirely comprised a request for the Tribunal to refer this case to the Minister (see below).

22.      Mr Ian McKean the applicant’s employer gave witness evidence that the applicant converses well and he wants to support him.  He has been a great employee and the business would hate to lose him.  He has worked on a 457 with them for 4 years.  Mr McKean said he thinks there has been a real mix-up between the applicant and his lawyer about the English test.

23.      As the applicant did not provide evidence of vocational English, as specified in the relevant legislative instrument, at the time of application, he does not satisfy cl.186.222(a).

Is the applicant in a class of persons specified by the Minister and therefore exempt?

1. Legislative Instrument 15/083 lists 2 classes of persons who are exempt from the English language criteria in relation to cl.186.222(b).  The first class relates to persons who earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate of $180,001 and over.[1]  The alternative applicable class of exempt applicants - class 3 are persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

   [1] < accessed 13 February 2017.

   25.      The applicant confirmed, after consulting with his employer who as present at the hearing, that he will not earn $180,001.

   26.      The applicant initially told the Tribunal that he had completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English and said he had done his 3 year diploma in English and also did his high school studies at St Monica’s in English.  However after the Tribunal had granted additional time for the applicant to provide evidence of his secondary school studies completed in English and after discussing this for some time, the applicant said he had only done one English language subject but his other secondary school education was not in English but in Filipino (Tagalog).  He confirmed that all his secondary school studies were not delivered full-time in English.  The applicant said he has not done any study full-time in Australia.  Therefore the applicant is not in any class of exempt persons.

   27.      As the applicant is not an exempt applicant in either class 1 or class 3 which are the only applicable classes specified in IMMI 15/083 he does not satisfy cl.186.222(b).

   28.      Therefore he does not satisfy cl.186.222 in its entirety.

   29.      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.

   Ministerial Intervention

   30.      The applicant’s representative asked the Tribunal to consider making a referral for Ministerial Intervention.  The Tribunal noted at the hearing that it was of the preliminary view that it was not persuaded to do so.  A written submission received after the hearing sets out the applicant’s circumstances thus:

   ·The applicant was granted a 457 visa more than 4 years ago, without producing IELTS and his English language ability was accepted by the department at that time and he had a “reasonable expectation that the English requirement would be waived by DIBP”.

   ·The applicant has worked for the same employer for over 4 years.

   ·The employer nominated the applicant under the Transition stream and this was approved.

   ·The applicant has the relevant skills, employment experience and age requirement.  He meets all the requirements except English.

   ·If the applicant has to leave Australia his employer, a genuine Australian employer, will face hardship and difficulties to replace him immediately.

   ·The applicant is a “truly valued” employee of Crown Coaches Pty Ltd and is valued as a Senior Motor Mechanic.

   ·The applicant has no other visa options in Australia or offshore.

   31.      In considering whether it should make a referral that the Minister intervene and exercise his power under in s.351 of the Act, the Tribunal has considered the Guidelines in PAM 3 as to the circumstances in the Minister may exercise this power.  In doing so the Tribunal notes it is not bound by department policy.

   32.      The Tribunal accepts that the applicant is a highly valued employee as demonstrated by 2 of his employers attending the hearing to support him and give evidence.  However, as explained to the applicant at the hearing, Ministerial Intervention is exercised in cases where there are unique and/or exceptional circumstances and it is not of the view, based on the evidence provided, that his circumstances are unique and/or exceptional such that the Tribunal should refer this case.

   33.      The Tribunal notes that it is open to the applicant to make a direct request for Ministerial Intervention.

   DECISION

   34.      The Tribunal affirms the decision not to grant the first named applicant a Employer Nomination (Permanent) (Class EN) visa

   35.      The Tribunal has no jurisdiction in relation to the second named applicant.

   Karen Synon
   Member