Goven (Migration)

[2017] AATA 2615

Goven (Migration) [2017] AATA 2615 (24 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dharmendra Goven
Mrs Harshila GOVEN
Master Nirall GOVEN
Master Neerav GOVEN

CASE NUMBER:  1715898

DIBP REFERENCE(S):  BCC2017/360972

MEMBER:Hugh Sanderson

DATE:24 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2017 at 2:56pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Direct Entry stream – Nominated position – Podiatrist – Members of the same family unit – English language requirements – Competent English – Academic qualifications supplied to the Tribunal – Applicant had not undertaken a language test

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 rr 1.15C, 1.15C(1)(a), 1.15C(1)(c) , 1.15C(2) Schedule 2 cl 186.232

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 6 July 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

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

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of podiatrist. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.232 of Schedule 2 to the Regulations because the applicant did not meet the English language requirements.

   Background

6. The applicant is a citizen of South Africa. The second named applicants are his wife and children who have applied for the visa on the basis that they are members of the family unit of the applicant satisfying the primary criteria.

7. The applicant applied for the visa on 27 January 2017. In his application stated that he had not undertaken an English language test within the 36 months immediately before the date of the invitation letter. The applicant provided various documents as to his education and stated that his primary language was English.

8. The Department wrote to the applicant on 5 June 2017 requesting further information in respect of his application. Specifically, they requested evidence of competent English language ability as defined in the legislation. The applicant provided further details of his university education and various references. The applicant stated that he was a senior lecturer in podiatry at Anglia Ruskin University in the United Kingdom. To obtain this position he obtained a postgraduate qualification in Learning and Teaching in Higher Education and thus providing evidence to obtain an exemption of the standard competent English language ability test requirements.

9. The delegate who considered the application noted that as the applicant had applied for the visa under the Direct Entry stream, he was required to show that at the time of the application he had competent English. The delegate noted that the applicant did not hold a valid passport issued by the United Kingdom, United States of America, Canada New Zealand or the Republic of Ireland and therefore was not exempt from the requirement to undertake a language test. As the applicant had not undertaken a language test, he did not meet the criteria for the grant of the visa. Accordingly, the delegate found the applicant did not meet the criteria in cl.186.232 and refused the application. As the applicant did not meet the criteria for the visa, the applications of the second named applicants were refused and they were not members of the family unit of a person who met the primary criteria.

   Information to the Tribunal

10. The applicant provided further information to the Tribunal including the following:

    ·Evidence of his academic qualifications;

    ·References from various people as to the applicant’s character and professional capacity;

    ·Document from the Australian Health Practitioners Regulation Agency noting that South Africa is recognised as being exempt from having to provide English language test results;

    ·Programs specification for the Queen Margaret University noting that the applicant was required to demonstrate competent English at a standard equivalent to the British Council English Language Testing Service; and

    ·Confirmation of the applicant booking an IELTS test on 29 July 2017.

11. The applicant provided a statement where he made the following claims:

    ·The applicant entered Australia on a 457 visa on the basis of the offer to work as a podiatrist;

    ·As he had completed all his schooling, undergraduate training and postgraduate training in English he was not required to undertake an English language test to obtain this visa;

    ·When he applied for the Direct Entry Stream – Employer Nomination Scheme visa as there had been no changes to his circumstances since the grant of the 457 visa he chose to provide evidence of his English language proficiency in the same manner he had for that visa;

    ·He has met the English language requirements for the Australian Health Practitioners Regulation Agency;

    ·He has done all his education in English and has taught in English in the United Kingdom; and

    ·The applicant has much to offer to Australia.

12. The applicants appeared before the Tribunal on 24 November 2017 to give evidence and present arguments.

13. The applicant said that when he was granted his 457 visa the evidence he had presented to establish his English language proficiency was sufficient for the grant of that visa. As his circumstances had not changed, he believed that this would be sufficient information for the grant of the current visa. He said that his error had been in not realising the benchmark set by the Department was different for the grant of the Employer Nomination Scheme visa.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. The issue in the present case is whether the applicant meets the required definition of having competent English.

    English language proficiency

16. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.232. There is no information before the Tribunal that the applicant will have earnings which will be at least equivalent to the current Australian Tax Offices top individual income tax rate.

17. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent 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.

18. The regulations provide that a citizen of the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland are considered to have competent English under r.1.15C(2). As the applicant holds a South African passport and is not a citizen of any of the above countries, he is required to undertake the required language test.

19. The relevant legislative instrument (IMMI 15/005) provides as follows:

    D. for paragraph 1.15C(1)(a), the following language tests:

    i.  an International English Language Test System (IELTS) test; or

    ii.  an Occupational English Test (OET); or

    iii.  a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv.  a Pearson Test of English Academic (PTE Academic); or

    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.  for paragraph 1.15C(1)(c) the following test scores:

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

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

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

20. At the time of the application, the applicant had not sat for any of the language tests as set out above. This was because the applicant believed that he had shown his English language proficiency skills in a manner acceptable to the Department when he applied for his subclass 457 visa. Unfortunately, the manner in which an applicant is required to establish English language proficiency, and the level of proficiency which must be shown, is particular for each visa subclass and, for the Employer Nomination Scheme visa, for each stream within that subclass.

21. As the applicant did not undertake a language test as specified by the Minister in IMMI 15/005 in the three years immediately before the date of the application the applicant does not meet the benchmark required to establish that he has competent English as defined in reg.1.15C(1).

22. It is noted that the applicant has now provided an IELTS Test Report Form dated 10 August 2017 where he achieved an overall band score of 8.0 with the lowest score for the components being writing at 6.5. Although this report would otherwise meet the criteria, as it was not conducted in the three years immediately before the date of the application it cannot be relied upon to meet the criteria for the grant of the application.

23. Therefore, cl.186.232 is not met.

24. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry stream. No claims have been made in respect of the other visa streams. As a requirement that must be met by a person seeking the visa in the Direct Entry stream has not been met, the decision under review must be affirmed.

25. As the second named visa applicants have based their claims on being members of the family unit of a person who meets the primary criteria and as the applicant does not meet the criteria for the grant of the visa, the decision to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member