Gurpreet Singh (Migration)

[2018] AATA 5787

Gurpreet Singh (Migration) [2018] AATA 5787 (13 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Gurpreet Singh

CASE NUMBER:  1828363

HOME AFFAIRS REFERENCE(S):           BCC2016/298815

MEMBER:Wan Shum

DATE:13 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 13 December 2018 at 4:29pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant Manager – English language requirements – vocational English – Applicant undertook three years study in English – five-year minimum – not exempt from meeting English language criteria – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, 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 14 September 2018 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 186 visa on 20 January 2016.  

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). 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 Restaurant Manager.

5. The delegate refused to grant the visa because he did not provide evidence of having competent English at the time of application. Nor was he a specified person such that he was exempt from meeting the English language criteria. The delegate found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations

6. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages when required.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has the required level of English proficiency for the visa.

10. At the time the visa application was 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 15/083: 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, the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

12. The applicant is claiming to be in a specified class of exempt applicants on the basis that he had completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. He is not claiming to be exempt on the basis of his earnings.

13. The 5 years of study claimed consisted of the following: two years of diploma study at Apex Institute in Australia, two months of an English language course at Holmes Institute in Australia, a Diploma of Automobile Engineering (Rayat Polytechnic College) in India for 1 year and 10 months, 6 months of Spoken English study at Bonafide Institute for Foreign languages and a Diploma in Computer Science (Computer Cares) in India for 1 year. The applicant provided letters from Bonafide Institute for Foreign languages as evidence of having studied 6 months of Spoken English, Rayat Polytechnic College and Computer Cares stating that the medium of language of all the institutions are in English.

14. The applicant explained at the hearing that he had not completed his studies in Automobile Engineering at Rayat Polytechnic College as he had been granted a visa to study in Australia. The Tribunal is of the view that study which has not been completed cannot be counted towards the 5 year total. The Tribunal also notes that 8 months of study is English language study, which it also does not consider can be counted towards the 5 year total. This is language study, and not study at secondary or higher level delivered in the English language. The Tribunal does not consider the study of English for approximately 10 months is study which counts for the purposes of the exemption from having vocational English. The exemption for this class of persons to demonstrate their proficiency in the English language by undertaking an English language test is allowed based on previous study at a particular level. This is effectively considered similar to the level of proficiency in the English language required for this type of visa. The Tribunal thus considers that study of the English language should not be counted.

15. When asked about other claimed study, the applicant said he had undertaken a computer course but that it was not a diploma. Even if the Tribunal were to accept that the study at Computer Cares could be counted, the applicant would only have provided evidence of a total of 3 years of study in English (taking into account the study at Apex Institute in Australia).

16. The applicant explained that he had undertaken an IELTS test prior to making the visa application but that he had achieved less than 5.0 in one of the test components. The applicant showed the Tribunal a copy of the test results during the hearing of an IELTS test taken in August 2015 which indicate that he achieved 4.5 in Reading, 5.5 in the listening and writing components and 6.0 in speaking. For vocational English, the applicant needed to achieve 5 in each of the test components in an IELTS test. The applicant holds a passport of India, which is not one of the specified countries. He thus does not have vocational English as defined in r.1.15B.

17. The Tribunal has considered the evidence before it. It does not accept that the applicant has completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English which meets the requirements for being in an exempt class of persons. Nor would his earnings be at least equivalent to the current Australian Tax Office top individual income tax rate.

18. Therefore, cl.186.222 is not met.

19. The applicant requested that the Tribunal allow him further time to undertake another English language test. The Tribunal explained that any test taken now would not meet the definition, as the definition required that the test be undertaken in the 3 years before the visa application was made. For this reason, it declined the request for additional time to undertake a further English language test.

20. 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.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Wan Shum
    Member