Huynh (Migration)

[2019] AATA 6675

Huynh (Migration) [2019] AATA 6675 (6 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ngoc Quang Huynh
Ms Ngoc Hieu Nguyen
Mr Ngoc Trieu Phu Huynh
Ms Huynh Thien Nguyen

CASE NUMBER:  1914300

HOME AFFAIRS REFERENCE(S):          BCC2017/4712557

MEMBER:Katie Malyon

DATE:6 November 2019

PLACE OF DECISION:  Sydney

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

Statement made on 06 November 2019 at 8:30 am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Project Administrator – invalid s 375A certificate – English language proficiency – competent English – did not undertake a specified language test – did not hold a specified passport – not class of exempt persons – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 280, 375A
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 186.222

CASES
El Jejieh v MHA (No. 2) [2019] FCCA 840

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 20 May 2019 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 for the visas on 11 December 2017.  At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. 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 3 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 - Vietnamese national Mr Ngoc Quang Huynh (hereinafter Mr Huynh) - is seeking the visa in the Temporary Residence Transition stream to continue his employment in the nominated position of Project Administrator ANZSCO 511112 with TNR Communication Pty Ltd (the Company).

   Background

5. The delegate refused to grant the visas on the basis Mr Huynh did not meet cl.186.222 of Schedule 2 to the Regulations because he did not demonstrate that he had, at the time of application, competent English and no evidence was provided to demonstrate that he was in a class of persons exempt from the need to meet the competent English language requirement.

   Hearing – 9 October 2019

6. The applicants were invited to appear before the Tribunal on 9 October 2019 to give evidence and present arguments.  The day prior to the scheduled hearing, the applicants’ representative informed the Tribunal that he was no longer assisting the applicants. 

7. Only the third named applicant, 20 year old Mr Ngoc Trieu Phu Huynh, appeared before the Tribunal at the hearing.  He explained that his father, Mr Huynh, was unwell having been discharged from hospital on Sunday, 6 October 2019 and provided an ED Discharge Referral from the South Western Sydney Local Health District’s Medical Complex.  The referral confirms Mr Huynh had been discharged 3 days earlier on 6 October 2019 following diagnosis of Benign Paroxysmal Positional Vertigo.  In the circumstances, the Tribunal invited the applicants to a further hearing. 

   Hearing – 4 November 2019

8. Only Mr Huynh attended the hearing.  The hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages. 

9. During the course of the hearing, the Tribunal informed Mr Huynh of the existence in the Department’s file of a non-disclosure certificate issued under s.375A of the Act dated 20 June 2019 (the Certificate).  The effect of such a certificate is that the Tribunal is prohibited from disclosing the information the subject of the Certificate.  The Tribunal has considered the validity of the Certificate in this case and finds that it is invalid: it merely has the printed name of the delegate who issued the Certificate and, consistent with the decision of Street J in El Jejieh v MHA (No. 2) [2019] FCCA 840, more is required.[1] 

   [1] El Jejieh v MHA (No. 2) [2019] FCCA 840, Street J at [23]

10. In any event, the Tribunal noted that the information the subject of the Certificate is irrelevant to the review as subsequent events have addressed the 2 issues raised therein.  In the circumstances and having provided him with a copy of the Certificate at the hearing, the Tribunal informed Mr Huynh of the gist of the material the subject of the Certificate.  First, the delegate expressed concern in October 2018 about the Company ‘going through significant downturn since 2016’ and, as a consequence, referred the matter to another team for closer investigation: however, the Tribunal notes the Company’s nomination in respect of the position of Project Administrator for Mr Huynh was approved on 1 February 2019 and, as such, the Tribunal is confident any earlier expressed concern about the Company’s financial viability has been considered and dismissed.  Second, the Department’s file identifies some confusion in December 2017 about Mr Huynh’s passport number as it is the ‘same passport number’ used by other visa applicants: however, a later file note indicates that Mr Huynh’s passport details have been updated and, in any event, the Tribunal observed that he was subsequently granted a Bridging B visa and left Australia for a month:  Mr Huynh confirmed that he left Australia on 21 July 2018 and returned on 22 August 2018.  In the circumstances, the Tribunal is satisfied that the earlier expressed concerns in relation to Mr Huynh’s passport number have been resolved. 

11. The Tribunal discussed with Mr Huynh the basis of the delegate’s decision and the law involved. By way of summary, it noted cl.186.222 of Schedule 2 to the Regulation requires that, at the time the visa application is made, the primary applicant in the Temporary Residence Transition stream must either have ‘competent English’ or be in a class of persons specified by the Minister in a legislative instrument (emphasis added). The term ‘competent English’ is defined in r.1.15C of the Regulations to mean the applicant undertook a specified language test in the 3 years preceding the visa application and achieved a specified score or they hold one of 5 specified passports (United Kingdom, USA, Canada, New Zealand or Ireland).  Alternatively, Mr Huynh could demonstrate that he has completed at least 3 years secondary or higher education where the language of instruction was English.

12. Mr Huynh told the Tribunal that he is a Vietnamese national and does not hold any of the prescribed passports.  Furthermore, although he has undertaken secondary and tertiary studies in Vietnam including a Bachelor of Information Technology, all the instructions for his education were delivered in Vietnamese, not English.  Mr Huynh confirmed that, prior to lodgement of his Subclass 186 visa application on 11 December 2017, he had not undertaken an English language test: this explains why he replied ‘No’ to the question in the visa application form as to whether he had undertaken an English language test before lodgement of the application.  He told the Tribunal that he is currently undertaking a English language course and requested the Tribunal delay making its decision until such time as he can pass the test. 

13. The Tribunal reiterated the requirement in cl.186.222 is a time of application criteria and, in the circumstances, the Tribunal has no discretion: it must apply the law. Mr Huynh acknowledged the Tribunal’s observations in this regard. Asked whether he had sought professional advice prior to lodgement of the visa application, Mr Huynh told the Tribunal that, after he came to Australia as the holder of a Visitor visa (on 31 March 2013), he applied for and was granted a Subclass 457 visa (on 12 December 2013) nominated by the Company with the assistance of an agent, Ms Tammie Nguyen. She was based in Cabramatta and actually helped Mr Khanh Nguyen, the owner of the Company, when he prepared and lodged Mr Huynh’s Subclass 186 visa. Mr Huynh confirmed he did not lodge his application: rather, he ‘let my boss do it’ on behalf the applicants. The Tribunal observed that, consistent with immigration law, an employer may provide immigration assistance to an employee without the need to be a registered migration agent (s.280(5B) of the Act) but Mr Huynh’s evidence did raise serious questions regarding the competence of the person who advised the Company and its business owner Mr Nguyen. Mr Huynh acknowledged the Tribunal’s comments in this regard. He added he understands Ms Nguyen is no longer a registered migration agent and has left Cabramatta.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    Issues

15. The issues to be determined in this case are whether, at the time of lodgement of the visa application, the applicant:

    1)has ‘competent English’; or,

    2)is in a class of persons specified in the relevant instrument, IMMI 18/045.

    English language proficiency

16. Clause 186.222 of Schedule 2 to the Regulation requires that, at the time the visa application is made, the primary applicant in the Temporary Residence Transition stream must either:

    a)have ‘competent English’; or,

    b)be in a class of persons specified by the Minister in a legislative instrument.

17. The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if they:

    ·     undertook a specified language test in the 3 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 IMMI 15/005. 

18. The class of persons specified by the Minister for the purposes of cl.186.222(b) of the Regulations is set out in IMMI 18/045.

    Consideration

    Does the applicant have competent English?

19. The Department’s file confirms Mr Huynh responded ‘No’ to the question in the application form as to whether he had undertaken a specified language test in the 3 years preceding lodgement of the application.  He acknowledged this at the hearing and told the Tribunal he had not undertaken any English language test prior to lodgement of the application. 

20. Mr Huynh holds a Vietnamese passport.  This is not one of the 5 countries specified in IMMI 15/005 being the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland.  

21. Evidence before the Tribunal confirms Mr Huynh did not undertake an English language test specified in IMMI 15/005 for ‘competent English’ and nor does he hold a specified passport. Accordingly, the Tribunal finds that Mr Huynh does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations. Therefore, cl.186.222(a) of Schedule 2 to the Regulations is not met.

    Is the applicant in a class of persons specified in the relevant instrument?

22. Relevantly, item 10 of IMMI 18/045 provides that, for the purposes of cl.186.222(b) of Schedule 2 to the Regulations for a Subclass 186 visa in the Temporary Residence Transition stream, the following class of persons is specified as exempt from the ‘competent English’ requirement:

    Persons who, at the date of visa application, have completed a minimum of five years of full-time study in a secondary or higher education institution where all the tuition was delivered in English.

23. Evidence before the Tribunal confirms that Mr Huynh is not a person who has completed at least 5 years full-time study in a secondary or higher education institution where all of the tuition was delivered in English. Therefore, cl.186.222(b) of Schedule 2 to the Regulations is not met.

    Conclusion

24. As the Tribunal has found that Mr Huynh does not satisfy either cl.186.222(a) or cl.186.222(b) of Schedule 2 to the Regulations, it therefore finds that cl.186.222 of Schedule 2 to the Regulations is not met.

25. Mr Huynh 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 2 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.

26. The applications of the second, third and fourth named applicants are based on their being a member of the family unit of a person who meets the primary criteria for grant of the visa.  As Mr Huynh does not meet the primary criteria, the Department’s decision to refuse their application must also be affirmed.

    DECISION

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

    Katie Malyon

    
    Member