Desfontaines (Migration)

[2018] AATA 4845

Desfontaines (Migration) [2018] AATA 4845 (26 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Emile Antoine Desfontaines

CASE NUMBER:  1813659

HOME AFFAIRS REFERENCE(S):           BCC2017/4518808

MEMBER:Alison Mercer

DATE:26 September 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

·cl.186.222 of Schedule 2 to the Regulations.

Statement made on 26 September 2018 at 4:16pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary transition stream – English language requirements – English tests not undertaken 3 years prior to visa application – secondary and tertiary education in English – decision under review remitted for reconsideration

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2 cl 186.222

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

2. The applicant applied for the visa on 29 November 2017. 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 Labour Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which required that, at the time of his visa application, he had ‘competent English’ (as defined in r.1.15C and the relevant written instrument), or was in a class of persons exempt from having to do so, as specified in the relevant written instrument, IMMI 17/058. The delegate noted that the only exempt class of persons listed in IMMI 17/058 was persons who had completed at least 5 years of full time study in a secondary and/or higher education institute where all of the tuition was delivered in English. The delegate further found that the applicant did not hold a specified passport and had not undertaken a specified English test in the 3 years immediately prior to making his visa application, he did not have ‘competent English’ as defined, and therefore did not meet cl.186.222(a). The delegate considered whether the applicant was exempt from having to demonstrate competent English but found that he had not provided any evidence that he had completed at least 5 years of full time study in a secondary and/or higher education institute where all of the tuition was delivered in English and thus found he did not meet cl.186.222(b). The delegate found that the applicant therefore did not satisfy cl.186.222 as a whole.

6. The Tribunal received an application for review from the applicant on 11 May 2018.  Subsequently, the applicant and his registered migration agent, Mr George Lombard, provided a copy of the delegate’s decision and the following evidence of the applicant’s educational history:

   ·academic transcript and testamur from the University of Cape Town for the applicant for a Bachelor of Arts degree completed between 2005 and 2007;

   ·letter dated 11 May 2018 from the University of Cape Town certifying that the applicant attended from February 2005 to December 2007 and that his Bachelor of Arts qualification was taught and examined through the medium of English, as the University is an English-medium university;

   ·letter from St John’s College, Johannesburg, dated 22 November 2013, certifying that the applicant was a pupil there from 1999 to 2003, and that all study was conducted in English; and

   ·further letter from St John’s College, Johannesburg, dated 4 May 2018 certifying that the applicant was a full time student there from January 1999 (grade 8) to December 2003 (grade 12 National Senior Certificate) and that the language of instruction at the school was English.

7. In a written submission dated 30 May 2018, the applicant’s agent submitted that the applicant had provided the above documents to the Department with his previous subclass 457 visa application, and did not provide them again with his subclass 186 visa application because he assumed that the Department already had a record of his education overseas in English. It was submitted that, in fact, the applicant had completed 8 years of full time secondary and tertiary/higher education study in South Africa, for which the medium of instruction was English, and thus met cl.186.222(b), and cl.186.222 as a whole.

8. The applicant appeared before the Tribunal on 18 July 2018 to give evidence and present arguments. The applicant’s agent participated by conference telephone. At hearing, the applicant confirmed his overseas educational history, his Australian migration history and his continuing employment as a Customer Service Manager with his nominating Australian employer.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

10. 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 17/058: 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. ‘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 (29 November 2017), the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. 

12. From the evidence before it, the Tribunal is satisfied that the applicant sat an IELTS test on 7 December 2013. The Tribunal notes that IMMI 15/005 specifies that an IELTS test is an acceptable test for the purposes of r.1.15C ‘competent English;’ however, r.1.15C(1)(ba) requires that any test relied upon to demonstrate ‘competent English’ must have been conducted in the 3 years immediately before the day on which the visa application was made. Accordingly, the Tribunal is legally unable to take into account the applicant’s IELTS test results for 7 December 2013 in determining whether he meets the combined requirements of r.1.15C, IMMI 15/005 and cl.186.222.

13. Similarly, while the Tribunal accepts that the applicant undertook a PTE test, which is also an English test specified in IMMI 15/005, it is satisfied that this test was undertaken on 8 April 2018, after the date of lodgment of the visa, and thus it does not satisfy the requirement in r.1.15C(1)(ba) to have been undertaken in the 3 years immediately before the visa application was made.

14. Finally, it is not disputed that the applicant holds a valid passport issued by the Republic of South Africa, and that this is not a passport specified for the purposes of cl.186.222 in IMMI 15/005.

15. Accordingly, the Tribunal finds that the applicant does not satisfy cl.186.222(a), and can therefore only satisfy clause 186.222 as a whole if he falls within the exemption category in IMMI 17/058 and thus meets cl.186.222(b). As noted above, the only exemption category in IMMI 17/058 is for:

    ·persons who had completed at least 5 years of full time study in a secondary and/or higher education institute where all of the tuition was delivered in English.

16. The delegate noted that the applicant did not provide any evidence of his study in English in either Australia and/or overseas which would indicate that he fell within the exemption category in IMMI 17/058. In response, the applicant and his agent have provided to the Tribunal documentary evidence of secondary and tertiary study undertaken by the applicant at various institutions in South Africa, totalling 8 years, for which those institutions have certified that the medium of instruction was English. They have also explained that this information was previously provided to the Department by the applicant in connection with his earlier subclass 457 visa application, and he was unaware that he should provide them again for his subclass 186 visa application to substantiate his claim to be exempt from having to demonstrate ‘competent English.’

17. The Tribunal has reviewed the documentation provided by the applicant and is satisfied that it is genuine and accurate.  It therefore accepts that the applicant:

    ·completed 5 years of full time secondary school education at St John’s College in Johannesburg between 1999 and 2003, for which the medium of instruction was English; and

    ·completed a 3 year Bachelor of Arts degree (a higher education qualification) on a full time basis at the University of Cape Town between 2005 and 2007, for which the medium of instruction was English.

18. The Tribunal notes that this evidence is consistent with information contained on the Australian Government Department of Education and Training’s online Country Education Profile for South Africa, which indicates that the language of instruction for education there is usually English or Afrikaans (although any of the 11 official languages may be used. The website of the University of Cape Town also indicates that English proficiency is a requirement for study at that institution, and that, while English, isiXhosa and Afrikaans are all recognised as official languages, English is the primary medium of instruction: >

    The Tribunal finds that the applicant has completed at least 5 (in fact, 8) years of full time study in a secondary and/or higher education institute where all of the tuition was delivered in English. He therefore falls within the exemption category set out in IMMI 17/058. The Tribunal is satisfied that he meets cl.186.222(b), and therefore, cl.186.222 is met as a whole.

19. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

20. The Tribunal remits the application for an Employer Nomination (Permanent) (Class EN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:

    ·cl.186.222 of Schedule 2 to the Regulations.

    Alison Mercer
    Member