Cells (Migration)

[2023] AATA 3149

Cells (Migration) [2023] AATA 3149 (25 September 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ronaldo Calaycay Cells
Mrs Susan Tan Cells
Miss Sophia Marie Cells

REPRESENTATIVE:  Dr Tessie Tumaneng-Diete (MARN: 1275741)

CASE NUMBER:  2110725

HOME AFFAIRS REFERENCE(S):          BCC2020/2717121

MEMBER:Alan McMurran

DATE:25 September 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 September 2023 at 6:42pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Stream) – temporary residence transition stream – cook – English language proficiency – no evidence of specified test and score within three years before application made – university education in English medium and extensive work experience in multiple countries – compassionate grounds – prevented from preparing for English test because of COVID restrictions – no discretion to waive requirement – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 359A, 359C(1)(b), 360(3)

Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cls 186.222, 186.311(a)

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application lodged 18 August 2021 for review of a decision made by a delegate of the Minister for Home Affairs on 17 August 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant, Mr Ronaldo Calaycay Cells (“the applicant”) a citizen of the Philippines, and 2 family members (the second and third-named applicants), applied for the visas on 27 November 2020. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, as here, Mrs Susan Tan Cells
   and Miss Sophia Marie Cells (“the secondary applicants”), who are also applicants for the visa, need satisfy only the secondary criteria.

4. The applicant 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.

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

   Background

6. 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 Cook ANZSCO 351411.

7. 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 undertaken a specified English language test and achieved the specified score (for competent English) during the three years immediately before lodgement of the visa application.

8. The Tribunal wrote to the applicant on 11 August 2023, inviting the applicant to comment on the information available. The Tribunal letter provided particulars as to the requirement to provide a valid English language test as at the time of application. The applicant responded on 22 August 2023, attaching a submission from the applicant set out below in these reasons.

9. On 25 August 2023, in light of the applicant’s response, the Tribunal sent a second letter to the representative under s 359A. The Tribunal letter noted that the applicant had responded stating he does not meet the regulation requirement and had not completed an English language test. The applicant was informed that if the Tribunal relies on this information, the Tribunal may affirm the decision because the application does not satisfy the regulation criteria. The applicant was invited to send comments in reply by 8 September 2023, or lose any entitlement he might otherwise have to appear and to give evidence and present arguments.

10. On 6 September 2023, the representative emailed a request to extend time for responding, due to a medical certificate produced for the applicant. A copy of the certificate was attached and simply stated that “the applicant has a medical condition and will be unfit for work from 06/09/2023 to13/09/2023 inclusive”. No other reason was given for the request.

11. On 7 September the Tribunal responded and declined the request. The Tribunal did not accept the medical certificate provided as sufficient reason to grant the extension. The applicant’s representative was referred to Clause 9.15 of the Tribunal’s Migration and Refugee Division Practice Direction of 22 Feb 2023, which requires evidence from a medical practitioner which acknowledges the reason for the request and explains why the applicant was unable to respond as invited. The applicant was reminded he must still reply to the Tribunal by 8 September 2023, but he did not respond further.

12. On 11 September 2023, the Tribunal wrote to the applicant and advised that as no extension had been granted and no response had been made to the Tribunal within the time requested, s 359C(1)(b) of the Act applies and the Tribunal would proceed to a decision at any time. The Tribunal has proceeded in accordance with s 360(3) as a consequence and without a hearing.

13. The Tribunal waited until 25 September 2023, but has heard nothing further.

14. The applicants were represented in relation to the review by a registered migration agent.

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant can meet the English language requirement in cl 186.222 of Schedule 2 to the Regulations.

    English language proficiency

16. 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 15/005, as per cl 186.222.

17. 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.

18. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations.

19. 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.

    Having regard to the date of visa application, the required level for this applicant is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

20. The applicant in this instance does not hold a passport as specified in the relevant instrument and therefore must satisfy the regulation criteria.

21. On 22 August 2023, the applicant wrote that:

    “I have been working with my current employer since February 2017. I was allowed to come and work in Australia on a subclass 457 visa and did not have to present any English test apart from evidences that I studied and completed a degree, Bachelor of Science in Hotel and Restaurant Management in an institution in the Philippines where English was the medium of instruction.     In addition I have been working in the industry since 1990. Some of my work experiences since then were in Saudi Arabia and Singapore, Australia and mostly in the Philippines.    My English language ability is therefore comparable and competent similar to those who have taken an English tests. It just so happened that I did not have the preparation for an English test like PTE before I lodged.”

22. The applicant requests that the Tribunal consider the applicant’s period in Australia working with his employer since 2017 and where he had to communicate in the English language while working. He also submits ‘compassionate grounds’ through being disrupted during the pandemic, which prevented him from preparing for his English test, because of Covid restrictions.  

23. The Tribunal has considered these submissions and the applicant’s acknowledgement that he does not meet the criteria. 

24. The Tribunal notes there is no discretionary element afforded the Tribunal to waive the criteria and the regulation requirements in the circumstances outlined. The Tribunal finds on the available information that the applicant was required to sit an English language test as specified in the relevant instrument, in the three years preceding the visa application and to have achieved a specified score.

25. The Tribunal finds that the applicant has not done so and has not been able to produce a test score in accordance with the specified requirement.

26. Therefore, cl 186.222 is not met.

    Conclusion

27. 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.

28. 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.

    Secondary applicants

29. Cl 186.311 of Schedule 2 to the regulations requires that the secondary applicants are members of the family unit of the primary visa applicant who holds a Subclass 186 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

30. Where the primary applicant has not been granted the visa, the secondary applicants cannot succeed and cl 186.311(a) is not met.

31. The Tribunal finds therefore that the secondary applicants do not meet cl 186.311.

    DECISION

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

    Alan McMurran
    Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    .

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.