DOKKAEW (Migration) - [2022] AATA 4249

DOKKAEW (Migration) [2022] AATA 4249 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr SATANAN DOKKAEW
CASE NUMBER:  1931306
HOME AFFAIRS REFERENCE(S):          BCC2019/3960801
MEMBER:Namoi Dougall
DATE:03 November 2022
PLACE OF DECISION:  Sydney
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; and

Statement made on 03 November 2022 at 9:32pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Restaurant Manager – applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English – applicant meets the exemption category – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, rr 1.03, 1.15, Schedule 2, cl 186.222

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 16 October 2019 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 9 August 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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, 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.
In the present case, the applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Care or Restaurant Manager.
The delegate refused to grant the visa because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the evidence provided by the applicant demonstrated that the applicant had completed a minimum of 5 years full time study in secondary or higher educational institution where all tuition was delivered in English.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the applicant meet the requirements of competent English or is exempt from meeting the requirements.

English language proficiency

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: DOKKAEW (Migration) [2022] AATA 4249
Case: [2022] AATA 4249
Decision Date: 3 November 2022

CaseChat Overview and Summary

The applicant, Dokkaew, sought judicial review of a decision made by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs concerning her application for a Subclass 186 Employer Nomination (Permanent) (Class EN) Visa, Temporary Residence Transition stream. The applicant had been nominated for the position of Restaurant Manager.

The primary legal issue before the Federal Circuit and Family Court of Australia was whether the applicant met the English language requirement for the visa, specifically whether she qualified for an exemption. The applicant contended that she had completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, which would exempt her from the standard English language proficiency test.

The Court found that the delegate's assessment of the applicant's English language proficiency was flawed. The delegate had failed to properly consider the evidence provided by the applicant regarding her prior study in English. The Court determined that the applicant had indeed met the criteria for the exemption, as she had completed a minimum of five years of full-time study in an institution where all tuition was delivered in English.

Consequently, the Court remitted the decision to the Minister for reconsideration according to law.

Orders