Gerna (Migration)

[2023] AATA 3686

Gerna (Migration) [2023] AATA 3686 (30 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Romel Gerna
Mrs Leonora Gerna
Miss Regine Ann Gerna

REPRESENTATIVE:  Ms Delia Del Rosario (MARN: 1001285)

CASE NUMBER:  2110836

HOME AFFAIRS REFERENCE(S):          BCC2020/1982394

MEMBER:Karen McNamara

DATE:30 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 30 October 2023 at 5:47pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – occupation of Motorcycle Mechanic – competent English – IELTS test reports – transitional 457 Visa worker – decision under review affirmed       

LEGISLATION

Migration Act 1958, ss 65, 351, 359
Migration Regulations 1994, Schedule 2, cls 186.222, 186.311; 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 5 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 applicants applied for the visas on 28 July 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, 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 first named applicant Mr Romel Gerna (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated occupation of Motorcycle Mechanic (ANZSCO 321213).

5. The applicants applied to the Tribunal on 19 August 2021, for review of the delegate’s decision. The review application was accompanied by the following;

   ·Primary decision record dated 5 August 2021

   ·Nomination approval ‘Collide a Scope Pty Ltd’ (Subclass 186) dated 26 April 2021

   ·Notification of approval of a nomination (subclass 457) and sponsorship approval dated 28 February 2018

   ·Secondary School Diploma 17 April 1990

   ·Auto Mechanics certificate 25 March 1991 and transcript of records

   ·Certificate of completion Electro Mechanic Course 13 May 1994

   ·Employment certification Kawasaki Motors (Phils) Corp dated 14 September 1994

   ·Certificate (Authorised Service Mechanic) Kawasaki Motors (Phils) Corp 3 April 1998

   ·Statement of employment Scootamoto (undated)

   ·Offer of employment Collide a Scope Motorcycles dated 18 June 2020

   ·Job description

   ·Motor Vehicle Repairers Certificate (WA) issued 11 January 2011

6. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

7. The decision record provided to the Tribunal by the applicant, records that on 5 August 2021, the delegate refused to grant the visas, because Mr Romel Gerna did not meet cl.186.222 of Schedule 2 to the Regulations. The delegate found that the applicant did not provide evidence of having competent English at the time of application nor was he a person in a class of persons specified in the relevant instrument.

8. The delegate also found that the second named applicant, Mrs Leonora Gerna and third named applicant Miss Regine Ann Gerna, could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

9. On 7 August 2023, the Tribunal wrote to the applicants pursuant to s.359(2) of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient and representative), inviting the applicants to provide evidence to support at the time of application (28 July 2020) Mr Gerna had competent English; or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

10. The invitation was sent to the applicants’ authorised recipient and representative via the last email address provided in connection with the review and advised that, if the information was not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

11. On 21 August 2023, the authorised representative on behalf of the applicants, provided to the Tribunal the following;

    ·Submission (undated)

    ·IELTS Test Report Form dated 15 October 2022 (Mr Romel Gerna)

    ·IELTS Test Report Form dated 8 August 2022 (Mr Romel Gerna)

    ·IELTS Test Report Form dated 10 February 2018 (Mr Romel Gerna)

    ·IELTS Test Report Form dated 25 June 2011 (Mr Romel Gerna)

    ·IELTS Test Report Form dated 29 August 2015 (Mr Romel Gerna)

    ·Certification of employment and letter of support Collide a Scope Motorcycles dated 16 August 2023

    ·Nomination approval ‘Collide a Scope Pty Ltd’ (Subclass 186 visa) dated 26 April 2021

    ·Secondary School Diploma 17 April 1990

    ·Auto Mechanics certificate 25 March 1991 and transcript of records

    ·Certificate of completion Electro Mechanic Course 13 May 1994

    ·Statement of employment Scootamoto (undated)

    ·Offer of employment Collide a Scope Motorcycles dated 18 June 2020

    ·Job description

    ·Motor Vehicle Repairers Certificate issued 11 January 2011

    ·Notification of grant of a subclass 457 visa 21 November 2016

12. On 8 October 2023, the applicant provided to the Tribunal via his representative, a copy of his lapsed NSW Repairer’s certificate.

13. On 9 October 2023, the representative provided to the Tribunal information previously provided to the Tribunal on 21 August 2023 and accompanying the application for review, as noted previously in this decision.

14. On 10 October 2023, the representative provided the Tribunal a copy of dependant applicant Ms Regine Ann Velarde Gerna’s IELTS Test Report Form dated 3 June 2020.

15. On 18 October 2023, Mr Romel Gerna appeared before the Tribunal via telephone, to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Leonora Gerna and Ms Regine Ann Gerna (dependent applicants) and Mrs Susan Hughes and Mr Lawrence Hughes (Australian Sponsor/Employer).

16. The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

17. The applicants were represented in relation to the review. The representative attended the hearing.

18. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant to the Department and Tribunal. While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

20. The issue in the present case is whether Mr Romel Gerna had competent English at the time of application: cl.186.222 (a) or was a person in a class of persons specified by the Minister in an instrument for cl.186.222 (b) of Schedule 2 to the Regulations.

    English language proficiency

21. 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 a legislative instrument (LIN 19/216) [1]. 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.

    [1] For visa applications made on or after 16 November 2019, the exemption for subclass 186 applications on English language requirements was repealed. There are no exemptions specified for cl186.222(b) or cl186.232(b).

22. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 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.

23. In this instance, having regard to the date of the visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005. For paragraph 1.15C(1)(c) of the Regulations, the following test scores are specified:

    i. an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing and listening; or

    ii. an OET test score of at least B in each of the four test components of speaking, reading, writing and listening; or

    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or

    iv. a PTE Academic test score of at least 50 in each of the four test components of speaking, reading, writing and listening.

    v.a Cambridge English: Advanced (CAE) test score of at least 169 on each of the four test components of listening, reading, writing and speaking.

24. For r.1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

25. The Tribunal is satisfied that the applicant holds a passport issued by the Philippines. He therefore does not hold a passport specified in IMMI 15/005, and thus must demonstrate that he has obtained the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 28 July 2020).

26. Information before the Tribunal shows that at the time of application, Mr Gerna provided to the Department an IELTS test report showing he undertook an IELTS test on 10 February 2018, in which he achieved scores of 5.5 for Listening, 4.5 for Reading, 5.0 for Speaking and 5.0 for Writing. Applicable in this matter, the relevant test scores are specified in legislative instrument IMMI 15/005. For paragraph 1.15C(1)(c) of the Regulations, the applicant must attain an IELTS test score of at least 6 in each of the four test components of Speaking, Reading, Writing and Listening. In this instance Mr Gerna did not achieve the requisite scores.

27. At the hearing the Tribunal discussed with the applicant that the issue before the Tribunal is not his or witness personal viewpoints on his English ability, but an objective determination based on whether he satisfies the time of application requirements by having competent English as prescribed by the legislation.  

28. The Tribunal noted that the applicant had provided numerous IELTS test results all of which show the applicant failed to meet the requisite score of at least 6 for the four test components. Only one IELTS test (10 February 2018) was undertaken in the three years immediately before the day on which Mr Gerna made the application.

29. The applicant confirmed that he had been unable to obtain the required score in any of the English tests he had undertaken.

30. In evidence before the Tribunal, the representative submits that the applicant as a transitional 457 worker, be exempt from the language requirements under LIN 19/216.

31. The Tribunal noted the representative’s claims at the hearing, however relevant to this matter there are no exemptions in LIN 19/216 for the purpose of cl.186.222(b).

32. Additionally, the representative submits that the applicant is willing to pay the second instalment of the visa application charge. The Tribunal noted Department policy in that the second instalment of the visa application charge applies to Schedule 1 functional English requirements only and can not be used by the primary applicant to meet the Schedule 2 competent English requirements.

33. The Tribunal acknowledges the high regard held by the applicant’s sponsor for his work and his contribution to their business, including his English language ability, the Tribunal however must turn its mind to the issue before it. The Tribunal must be satisfied that at the time the applicant made his visa application, the applicant had competent English; or was in a class of persons specified in legislative instrument LIN 19/216. Whilst the Tribunal has empathy for the applicant and his family, the Tribunal has no discretion in this matter to waive the requirements of cl.186.222. 

34. Having considered the evidence before it, the Tribunal finds that at the time Mr Romel Gerna lodged his application with the Department on 28 July 2020, he had not achieved the requisite score in a specified English Language test as prescribed in regulation 1.15C(1).

35. As the applicant has not provided evidence that he has satisfied any language test requirements by undertaking a specified English language test and achieved the specified score in a specified test in the three years immediately before the day on which the application was made; and given the applicant holds a passport issued by the Philippines (which is not of a type specified by the Minister), the applicant does not meet the requirements of r.1.15C. Therefore, the Tribunal must find that the applicant does not have competent English as defined in r.1.15C and as such the applicant does not meet cl.186.222(a).

36. Clause 186.222(b) requires that the applicant be a class of person specified in the relevant instrument. The relevant instrument under cl.186.222(b) at the time this application was lodged, is LIN 19/216.

37. The Tribunal has reviewed the exemption categories listed in LIN 19/216 and is satisfied that there are none listed for the purposes of cl.186.222(b).

38. The Tribunal therefore cannot be satisfied that the applicant meets the requirements of cl.186.222(b).

39. As the criteria in cl.186.222(a) and cl.186.222(b) are not met, accordingly the requirements in cl.186.222 are not met.

40. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named applicant, Mrs Leonora Gerna and third named applicant Miss Regine Ann Gerna as members of Mr Romel Gerna’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311.

41. 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.

    Ministerial Intervention

42. At the hearing the applicant’s employer/sponsor raised with the Tribunal what options the applicant may have to return to Australia and take up his employment. The Tribunal noted the applicant was represented by a Migration Agent who would be able to advise the applicant. The Agent discussed that should the matter be affirmed by the Tribunal; the matter may be referred to the Minister. The Tribunal notes that no direct request has been made to the Tribunal to refer this matter to the Minister on behalf of the applicants.

43. The Tribunal notes that under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so.

44. The Tribunal has no statutory obligation to consider whether matters should be referred to the Minister for consideration of use of his powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether he is requested to do so by the applicant, or any other person, or in any other circumstances.

45. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act. The guidelines indicate that the Minister will give possible consideration to exercising his public interest powers in cases which exhibit one or more unique or exceptional circumstances.

46. In this instance it is open to the applicants to make a request to the Minister, if they believe there are unique or exceptional circumstances in their case which would warrant Ministerial intervention.

    DECISION

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

    Karen McNamara
    Member