Hassan (Migration)

[2024] AATA 1199

Hassan (Migration) [2024] AATA 1199 (16 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Md Zahid Hassan

REPRESENTATIVE:  Mr Abdul Hamid Ajiz (MARN: 9788683)

CASE NUMBER:  2213124

HOME AFFAIRS REFERENCE(S):          BCC2019/6350302

MEMBER:SM Michael Cooke

DATE:16 May 2024

PLACE OF DECISION:  Sydney

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

Statement made on 16 May 2024 at 3:02pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – Competent English – Master’s Degree in Bangladesh – specified language tests in the three years preceding the visa application – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.222; 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 25 August 2022 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 28 November 2019. 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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Cook.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not have “Competent English’.

6. The applicant appeared before the Tribunal on 16 May 2024 to give evidence and present arguments.

7. The applicant was represented in relation to the review. The representative attended the hearing.

8. At the hearing the applicant tendered a Pearson (PTE) language test conducted on 23 March 2023 with scores of 49 Listening 50 Reading 50 Speaking and 51 Writing. He also submitted a Confirmation of Enrolment for a Certificate IV in Kitchen Management and a subscription to Language Academy Gold Plan.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant can meet the requirements of Reg 1.15C regarding ‘Competent English’.

    The Hearing

11. The Tribunal read from the delegate’s decision record details of the applicant’s dealings with the Department. The Tribunal noted that the applicant had claimed to the Department in his application that he had both a Bachelor’s Degree and a Master’s Degree from the Islamic University Chittagong Bangladesh. The Tribunal pointed out to him that these qualification were not tests of English skills as set out in IMMI15/005.

12. The Tribunal observed that the applicant had at the same time later presented a Pearson (PTE) English language test to the delegate which had not met the specific score demanded by the Instrument for ‘Competent English’.

13. The Tribunal was perplexed by this outcome and asked the applicant why this was so. He explained that he had been working very hard and had not had time for study. To remedy his English problem, he had performed another PTE test, had also enrolled at university and was doing everything possible to improve his English.

14. The Tribunal noted his remarks but pointed out that regulation 1.15C required him to have performed the tests satisfactorily and before time of application. Otherwise, he would not meet the criteria for the visa.

    English language proficiency

15. 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 the legislative Instrument 15/005: 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’.

16. ‘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.

    In this instance, having regard to the date of visa application (28 November 2019) the required level is ‘Competent English’. The relevant tests, scores and passports for these purposes are specified in legislative Instrument IMMI15/005.

17. The applicant has tendered two Pearson (PTE) tests after the time of application. In the first one he submitted (28 February 2022) to the delegate, he attained the following results in one examination (held on 24 January 2019):

    Listening: 46

    Reading: 42

    Writing: 49

    Speaking: 49

18. The applicant did not attain the prescribed score of at least 50 in each of the four test components of listening, reading, writing and speaking in that examination.

19. In a subsequent Pearson test (held on 23 March 2023 and which he tendered at the hearing) he did not attain the prescribed score (50) in the test component of Listening, in that examination (see above par.8). This means he has failed a PTE test for the second time.

    Findings and reasons at the time of application:

20. The Tribunal finds that the applicant holds a Bangladeshi passport which is not a specified passport, and he does not, therefore, meet reg 1.15C(2).

21. The Tribunal finds that the applicant did not achieve the specified score in a specified test in the three years before the application. He does not meet reg 1.15C(1).

22. The Tribunal finds from Instrument LIN19/216 that there are no English language exemptions available for Subclass 186 Temporary Residence Transition (TRT) visa applications lodged on or after 16 November 2019. The applicant’s visa application was lodged on 28 November 2019. Thus, he is also not in a specified class of exempt applicants.

23. Therefore, cl 186.222 is not met.

24. 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

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

    Michael Cooke
    Senior Member

    
    

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    .

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.