JADHAV (Migration)

[2024] AATA 294

JADHAV (Migration) [2024] AATA 294 (25 January 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jaimin Rajeshrao JADHAV

Mrs Jyotikabahen Jaimin JADHAV
Miss

Kanthi Jaimin JADHAV

REPRESENTATIVE:  Mr Jonathan Flannery

CASE NUMBER:  2115864

HOME AFFAIRS REFERENCE(S):  BCC2019/6627350

MEMBER:Ian Berry

DATE:25 January 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 January 2024 at 2:51pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Restaurant or Café Manager – English language proficiency – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 October 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 12 December 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 first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of restaurant or café manager ANZSCO occupation code 141111.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not show he had competent English or he held a passport exempting the competent English requirement. The delegate noted the applicant seeking an exemption from the English language requirement by having studied secondary and/or tertiary courses full-time for at least 5 years. In addressing this issue, the delegate stated that there were no English language exemptions available for the Subclass 186 visa in the Temporary Residence Transition stream. The applicant did submit an IELTS test result taken on 14 December 2019. The delegate reasoned that for an English test result to be accepted under cl. 186.222(a), it must lodged before or at the time in making the visa application.

6. The applicants appeared before the Tribunal on 25 October 2023 to give evidence and present arguments. The hearing proceeded by way of a video link.

7. The applicants were represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue is whether the applicant has satisfied the reg.186.222 criterion of having competent English or coming within an exemption specified by a legislative instrument. In this case IMMI 15/005 refers to exemptions for certain passport holders and IMMI 19/216 refers to exemptions from Skill, Age and English Language Requirements for a visa under Subclass 186.

   English language proficiency

10. 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 legislative instrument IMMI 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.

11. ‘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, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

12. The applicant’s visa application specified that he applied for a subclass 186 in the Temporary Residence Transition stream[1]. Clause 186.222(a) of the Regulations states the applicant, at the time of application, must have competent English.

    [1] Folio 1 of 21 Visa application made 12 December 2019.

13. In the applicant’s visa application[2], he answered “No” to the question “has the applicant undertaken and English test in the last 36 months?”

    [2] Folio 12 of 21

14. The applicant is a citizen of the Republic of India and therefore does not come within the exemption as being a passport holder from exempted countries.

15. Therefore, cl 186.222 is not met.

16. 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.

    Secondary applicants

17. In respect of the other applicants, not including the primary applicant, (the secondary applicants) the Tribunal notes that there is no information before it to suggest that secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as  they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

    DECISION

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

    Ian Berry
    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.