CHOI (Migration)

[2019] AATA 275

CHOI (Migration) [2019] AATA 275 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ikjae Choi
Mrs Yeawon Na
Mr Jiwoo Choi

CASE NUMBER:  1803179

HOME AFFAIRS REFERENCE(S):           BCC20172260621

MEMBER:Wan Shum

DATE:5 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 February 2019 at 12:24pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – vocational English – specified language test in the three years preceding the visa application – decision under review affirmed            

LEGISLATION

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

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 18 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 26 June 2017. 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 Labour Agreement stream.

3. In the present case, the first named applicant (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: cl.186.222 of Schedule 2 to the Regulations.

4. 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 he was exempt from meeting the English language criteria. The delegate found that the applicant did not meet cl.186.222.

5. The applicants sought review of that decision and were represented by a registered migration agent.

6. The applicants appeared before the Tribunal on 13 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages when required.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. 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.

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

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

11. The applicant told the Tribunal that he had undertaken an IELTS test prior to making the visa application but did not achieve the minimum score for vocational English. The applicant requested that the Tribunal allow him further time to undertake another English language test in January 2019. The Tribunal explained that any test taken now would not meet the definition, as the definition required that the test be undertaken in the 3 years before the visa application was made.

12. The applicant holds a passport of Korea, which is not one of the specified countries. He thus does not have vocational English as defined in r.1.15B and he does not satisfy cl.186.222(a).

13. In respect of whether he 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.

14. The applicant confirmed to the Tribunal that his earnings were not at least equivalent to the current Australian Tax Office top individual income tax rate. He also confirmed that he 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.

15. The Tribunal has considered the evidence before it. There is no evidence before it that the applicant has 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. Nor were his earnings at least equivalent to the current Australian Tax Office top individual income tax rate. He is therefore not a person in a class of persons specified by the Minister and does not meet cl.186.222(b).

16. Therefore, cl.186.222 is not met.

17. 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

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

    Wan Shum
    Member