Ferreira (Migration)

[2017] AATA 1872

Ferreira (Migration) [2017] AATA 1872 (9 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Andrew James Ferreira
Mrs Candice Yvette Ferreira

CASE NUMBER:  1712726

DIBP REFERENCE(S):  BCC2016/3587117

MEMBER:Danica Buljan

DATE:9 October 2017

PLACE OF DECISION:  Melbourne

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

• Clause 186.222 of Schedule 2 to the Regulations.

Statement made on 09 October 2017 at 3:52pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Language proficiency – Vocational English

LEGISLATION

Migration Act 1958, s 65, 360

Migration Regulations 1994, r 1.15B, 1.15C, 1.15D, 1.15EA, Schedule 2 186.222

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 Immigration on 26 May 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under section 65 of the Migration Act 1958 (‘the Act’).

2. The applicants applied to the Department of Immigration for the visas on 27 October 2016. 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 Agreement stream.

4. 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 ‘Sales Representative (Industrial Products)’ (ANZSCO[1] Code 225411). This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

   [1]     ANZSCO: Australian and New Zealand Standard Classification of Occupations, 26 June 2013

5. The delegate refused to grant the visas because the applicant did not meet clause 186.222 of Schedule 2 to the Regulations because he had not demonstrated that, at the time of application, he had either ‘vocational English’ or that he was a person who was exempt from this requirement under the legislation.

6. The applicants lodged an application for review with the Tribunal on 15 June 2017 and a copy of the primary decision was included with the application for review.[2] The applicants were self-represented in relation to the review.

   [2]     AAT Case file 1712726 (T1), f.1-5

7. The matter was constituted to the Presiding Member on 4 October 2017. The Tribunal has before it the departmental file[3] relating to the applicants. It has also had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.[4]

   [3]     D1 - Departmental file, BCC2016/3587117  folio numbered 1-135

   [4]     AAT Case file 1712726, folio numbered 1-37

8. On 15 June 2017 and 2 October 2017 the applicant submitted evidence to the Tribunal that he had completed his secondary school education entirely in the English language.[5]

   [5]     T1, f.6-8 & 27-29

9. As a result, and in accordance with subsection 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicants’ favour on the basis of the material before it. It was therefore unnecessary to invite the parties to appear before the Tribunal to give evidence in relation to the decision under review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. Division 186.2 ‘Primary Criteria’ in Subclass 186 provides that the primary criteria an applicant in the Temporary Residence Transition stream must satisfy are set out in Subdivisions 186.21 (‘Common Criteria’) and 186.22 (‘Criteria for Temporary Residence Transition Stream’). 

12. In addition, Division 186.2 specifically states that the primary criteria must be satisfied by at least one member of a family unit, and that all criteria must be satisfied at the time a decision is made on the application.

13. The issue in the present case is whether the applicant meets the requirements of clause 186.222 of the Regulations.

    English language proficiency

14. Specifically, for applicants in the Temporary Residence Transition stream clause 186.222 provides:

    186.222At the time of application, the applicant:

    (a)had vocational English; or

    (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

    Paragraph 186.222(a) - Vocational English:

15. ‘Vocational English’ is defined in regulation 1.15B of the Regulations. A person will have vocational English 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.

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005, 'Language Tests, Score and Passports 2015 (Regulations 1.15B, 1.15C, 1.15D and 1.15EA)', 3 December 2014.  

16. In his visa application form the applicant stated that he was a citizen of South Africa[6] and he provided a copy of a valid South African passport[7] in support of his application. Accordingly, the Tribunal finds that the applicant was not the holder of a valid passport issued by the United Kingdom, the Unites States of America, Canada, New Zealand or the Republic of Ireland when he lodged his visa application on 27 October 2016. Therefore, the Tribunal finds that he did not have ‘vocational English’ on this basis as set out in IMMI 15/005.[8]

    [6]     D1, f.117

    [7]     D1, f.91

    [8]     See subclause 4.C of IMMI 15/005

17. In support of his visa application, the applicant also submitted IELTS[9] test results for a test he had undertaken on 11 February 2017[10] and in which he had achieved scores of 7.0 for listening, 6.0 for reading and writing, and 9.0 for speaking with an overall band score 7.0. The Tribunal accepts that the applicant’s results exceed the IELTS test score of at least 5.0 in each of the four test components specified in IMMI 15/005. However, clause 186.222 requires the applicant to demonstrate that he had vocational English at the time of application on 27 October 2016. As a result, the Tribunal finds that the applicant did not have vocational English, as defined, at the time of application for the purposes of paragraph 186.222(a).

    [9]     IELTS: International English Language Testing System

    [10]    D1, f.41 & 44 and T1, f.25

18. There is little in the evidence to indicate that the applicant has undertaken any of the alternative tests specified for the purposes of vocational English, such as an Occupational English Test (‘OET’), Test of English as a Foreign Language internet-based Test (‘TOEFLiBT’), or a Pearson Test of English Academic (‘PTE Academic’).[11]   

    [11]    See subclause 4.B of IMMI 15/005

19. Accordingly, the Tribunal finds that the applicant did not have vocational English, as defined, at the time of application. Therefore, he does not meet the requirements of paragraph 186.222(a)

    Paragraph 186.222(b) – Specified Class of Exempt Persons:

20. Paragraph 186.222(b) requires in the alternative that, at the time of application, the applicant was a person in a class of persons specified for this paragraph. However, as noted above, Division 186.2 also provides that the Tribunal must be satisfied that this criterion is met at the time it makes its decision.

21. The Tribunal observes that when the applicant lodged his visa application on 27 October 2016, the instrument that specified the class of persons for paragraph 186.222(b) was legislative instrument IMMI 15/083 ‘Specification of Class of Persons 2015’.[12]

    [12]    IMMI, 15/083 ‘Specification of Specification of Class of Persons 2015 (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))’, 25 June 2015.

22. However, at the time of the Tribunal’s decision the relevant instrument specified for the purposes of paragraph 186.222(b) is IMMI 17/058 ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas’.[13] At present there is no judicial authority that specifically addresses which of the two legislative instruments, IMMI 17/058 or IMMI 15/083 should be applied for the purposes of paragraph 186.222(b). 

    [13]    IMMI 17/058, ‘Occupations for Subclass 187 visas; Skill, Age and English language requirements for Subclass 186 and Subclass 187 visas, 23 June 2017. ’

23. Notwithstanding, the Tribunal observes that IMMI 17/058 repealed and replaced IMMI 15/083. It also notes that IMMI 17/058 specifically states that it applies to all subclass 186 visa applications made before 1 July 2017 and that have not been determined by that date. This is the case with the current application for review.[14] As a result, given the wording of Division 186.2, clause 186.222 and IMMI 17/058, the Tribunal considers it should apply IMMI 17/058 to the facts of this case. For the purposes of paragraph 186.222(b), IMMI 17/058 specifies the following class of persons at clause 12:

    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]    See IMMI 17/058, Part 4, clause 13 at page 5

24. Further, in the event that the correct interpretation of paragraph 186.222(b) requires the Tribunal to apply IMMI 15/083, the Tribunal observes that, apart from some minor changes in relation the wording of clause 4 in IMMI15/083, the class of persons listed in clause 12 of IMMI 17/058 for the purposes of paragraph 186.222(b) largely reflects what was previously set out in clause 4 in IMMI 15/083.

25. In this case, the applicant submitted two letters (dated 19 August 2014[15] and 5 June 2017[16]) from the Principal of the Alexander Road High School in Port Elizabeth, South Africa stating that he had completed his secondary school education to Year 12 from January 1993 to December 1997. In addition, the Principal advised that this is an English speaking school and that the applicant was fully instructed in the English language.

    [15]    T1, f.6 & 28

    [16]    T1, f.7 & 29

26. The Tribunal notes that South Africa’s ‘School Guide’[17] confirms the existence of this particular high school. According to the Country Education Profile for South Africa on the Australian Department of Education and Training website[18], senior secondary students (including Year 12) are required to study two official languages. English is one of eleven official languages in South Africa.[19] The Tribunal also notes that the English population is largely concentrated in the Western Cape, Eastern Cape (which includes Port Elizabeth) and KwaZulu-Natal.[20]

    [17]    See - Accessed 9 October 2017, T1, f.34

    [18]    - Accessed 9 October 2017, T1, f.35

    [19]    See - Accessed 9 October 2017,T1, f.36

    [20]    See - Accessed 9 October 2017,T1, f.36

27. Accordingly, the Tribunal finds that the Alexander Road High School in Port Elizabeth, South Africa is located in an area where the English population is largely concentrated and, therefore, it is satisfied that this is an English speaking school. In addition, whilst the Tribunal cannot take the results the applicant achieved in his IELTS test on 11 February 2017 into account for the purposes of paragraph 186.222(a), the fact that the applicant’s test scores exceed those specified for vocational English lends support to his claim that he completed his secondary school education in the English language.

28. As a consequence, given the totality of the evidence before it, including the evidence from the Principal of the Alexander Road High School, the Tribunal accepts that the applicant had completed five years of full-time study in a secondary education institution where all of the tuition was delivered in English at the time he lodged his visa application on 27 October 2016.

29. As a result, the Tribunal finds that the applicant was a person in a class of persons specified by the Minister in an instrument in writing for the purposes of paragraph 186.222(b) at the time of application. Therefore, the Tribunal finds that the applicant meets the requirements of paragraph 186.222(b) and clause 186.222.

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

    DECISION

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

    ·Clause 186.222 of Schedule 2 to the Regulations.

    Danica Buljan
    Member