Beltran Huertas (Migration)

[2019] AATA 2163

Beltran Huertas (Migration) [2019] AATA 2163 (13 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Erika Johana Beltran Huertas

CASE NUMBER:  1822126

HOME AFFAIRS REFERENCE(S):           BCC2017/2269738

MEMBER:Wan Shum

DATE:13 February 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 13 February 2019 at 4:32pm

CATCHWORDS
MIGRATION – Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – did not meet vocational English requirement – IELTS test not taken 3 years before application submitted – not exempt from English language criteria – decision under review affirmed

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

CASES
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8

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

2. The applicant applied for the Subclass 186 (Employer Nomination Scheme) visa on 27 June 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 Temporary Residence Transition stream. Under this stream, it is a requirement for the visa that the applicant has vocational English at the time of application or is in a class of persons specified by the Minister.

5. The delegate refused to grant the visas because the applicant did not provide evidence at the time of application of having vocational English. Nor was she exempt from meeting the English language criteria. The delegate found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations.

6. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

7. The applicant appeared before the Tribunal on 30 January 2019 to give evidence and present arguments. An interpreter in the Spanish and English languages was present if required.

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 Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in the applicable legislative instrument: cl.186.222. 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.

11. In this instance, having regard to the date of visa application, the required level is vocational English.

12. ‘Vocational English’ is defined in r.1.15B of the Regulations. 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.

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

14. The applicant told the Tribunal that she had undertaken an IELTS test prior to making the visa application on 21 June 2014, but acknowledged that it did not meet the requirement of having been taken in the 3 years immediately before the day on which the application was made by a few days. She explained that she was still collecting other relevant documents for her visa application and did not double check the dates prior to lodging her visa application.

15. The applicant had provided evidence of an IELTS test taken on 2 June 2018 to the Department of Immigration, in which she achieved at least 5 in each of the test components.  However, this test was undertaken after the visa application was made.

16. It was submitted that the first test was only 6 days prior to the 3 years allowed by the regulations and that the applicant’s English language skills would not have significantly changed in that period. It was further submitted that the second test should have been considered by the delegate, who was “deprived of the very information needed to determine whether the applicant has sufficient English language skills to integrate into Australian society”. It was submitted that this would be in keeping with the principle in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8. 

17. However, the Tribunal cannot depart from the wording in the regulations which make it clear as to when the test is to be undertaken. It thus cannot find that the test on 21 June 2014 meets the requirements as it is more than 3 years immediately prior to the day the visa application was made. In relation to the second test, while it is more recent evidence of the applicant’s English language skills, the Tribunal finds that this test does not meet the wording of the regulation which makes clear that the test is to be taken prior to the lodgement of the visa application. The Tribunal notes that the High Court in Berenguel considered an earlier version of the regulations, which were amended as a consequence.

18. The applicant holds a passport of Colombia, which is not one of the specified countries. Based on the evidence provided, the Tribunal finds that the applicant does not have vocational English as defined in r.1.15B. She thus does not satisfy cl.186.222(a).

19. In respect of whether she is in a class of persons specified for the purposes of cl.186.222(b), the relevant instrument is IMMI 15/083 which specifies two types of persons who are effectively exempt from meeting the requirement of having “vocational English”. These are persons whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate or 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.

20. The applicant confirmed to the Tribunal that her earnings were not at least equivalent to the current Australian Tax Office top individual income tax rate. She also confirmed that she had not completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

21. Given this, she is not a person in a class of persons specified by the Minister and does not meet cl.186.222(b).

22. While the Tribunal has sympathy for the applicant, noting that if she had lodged her visa application several days earlier, her 21 June 2014 IELTS test would have met the requirements. However, it does not have any discretion in this matter and cannot find that she has vocational English on the basis of this test or the subsequent test.

23. Therefore, cl.186.222 is not met.

24. 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.

    DECISION

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

    Wan Shum
    Member