BAHRUNANI DIAZ (Migration)

[2019] AATA 869

BAHRUNANI DIAZ (Migration) [2019] AATA 869 (5 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Elena Judith BAHRUNANI DIAZ

CASE NUMBER:  1816057

HOME AFFAIRS REFERENCE(S):           BCC2017/2984573

MEMBER:Wan Shum

DATE:5 March 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visas.

Statement made on 05 March 2019 at 11:46am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – language proficiency requirement – Competent English – specified language test in the three years preceding visa application – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 186.232

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 21 May 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) Subclass 186 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 186 (Employer Nomination Scheme) visa on 19 August 2017.

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). 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.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream. Under this stream, it is a requirement for the Subclass 186 visa that the applicant has competent English at the time of application or is in a class of persons specified by the Minister: cl.186.232 of Schedule 2 to the Regulations.

5. The delegate refused to grant the visas because the applicant did not provide evidence at the time of application of having competent English. Nor was she found to be in a class of persons specified by the Minister. The delegate found that the applicant did not meet cl.186.232.

6. The applicant has sought review of that decision and was represented by a registered migration agent.

7. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has the required level of English proficiency for the visa.

10. At the time the visa application was made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified by the Minister: cl.186.232. The relevant legislative instrument for a Subclass 186 visa made after 1 July 2017 and before 18 March 2018 is IMMI 17/058. There is no class specified for the purposes of cl.186.232(b) in that instrument.

11. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent 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.

12. The applicant told the Tribunal that she had not known until mid-August 2017 that the employer was going ahead with the nomination because of changes in management. By the time she knew, however, there were no language tests available and her Subclass 485 visa was about to expire. The applicant’s most recent English language test was undertaken in 2013, and she provided the results of a TOEFL test as well as a copy of her University medal for her MBA and academic transcript as “alternative proof of her English [language skills]”. She has also provided a copy of her skills assessment and the results of the TOEFL test she had undertaken on 8 September 2018.

13. The Tribunal accepts that in both the TOEFL tests, she scored above the minimum score in each test component that is required to meet the definition of competent English. However, neither of these tests was taken in the 3 years before the visa application was made and cannot be relied upon to meet the definition of “competent English”. The completion of an MBA in Australia is not acceptable evidence that she has “competent English”. Nor is a positive skills assessment. “Competent English” is a defined term in the legislation, and the Tribunal does not have any discretion to consider other evidence of English language competency. It can only find that the definition has been met if the specified score has been achieved in specified tests or if the person holds a specified passport. In this case, the applicant has not presented evidence of having achieved the scores required in one of the specified language tests in the 3 years before the visa application was made. In terms of passports, she holds a passport of Spain, which is not one of the specified countries.

14. The applicant has also presented letters from her employer, one of which refers to how critical she is in the delivery of their projects in the coming 6 months. The Tribunal accepts this is the case. However, on the evidence before the Tribunal, it cannot find that she meets the definition of competent English as defined in r.1.15C and she thus does not satisfy cl.186.232(a).

15. In respect of whether she is in a class of persons specified for the purposes of cl.186.232(b), the relevant instrument is IMMI 17/058 which does not specify any class of persons for this subparagraph. She thus does not meet cl.186.232(b). On the information before the Tribunal, cl.186.232 is not met.

16. The applicant has presented evidence that she has lodged another Subclass 186 visa application and requested that the Tribunal make a recommendation that her bridging visa be extended to allow her to remain in Australia to work for her employer while it is being processed. The Tribunal’s powers on review are limited to reviewing the merits of the case, and it does not have power to make recommendations about granting or extending bridging visas.

17. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Wan Shum
    Member