Kim (Migration)

[2022] AATA 4034

Kim (Migration) [2022] AATA 4034 (16 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Joungchoul Kim
Mrs Cheenkyong Kim

CASE NUMBER:  1930053

HOME AFFAIRS REFERENCE(S):          BCC2019/2792106

MEMBER:Karen McNamara

DATE:16 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2022 at 11:26am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – project builder – English language proficiency – required score in specified test not obtained – numerous test reports showing less than required score in all components – member of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), r 1.15C(1)(c), Schedule 2, cls 186.222(a), 186.311

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 8 October 2019 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 30 May 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 Mr Joungchoul Kim (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Project Builder (ANZSCO 133112). The nominating employer is MJ Family Pty Ltd T/A Dream Forward Construction.

5. The decision record provided to the Tribunal by the applicant, records that on 8 October 2019 the delegate refused to grant the visas, because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations. The delegate found that the applicant did not provide evidence of having competent English at the time of application nor was he a person in a class of persons specified in the relevant instrument.

6. The delegate also found that the second named applicant, Mrs Cheenkyong Kim could not be granted a Subclass 186 visa, as she did not meet the secondary visa criterion (cl.186.311), requiring her to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

7. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 23 October 2019. The review application was accompanied by a copy of the delegate’s decision record.

8. The Tribunal notes that numerous evidence and submissions were lodged by or on behalf of the applicant.  While the Tribunal has considered all of same, only that which was considered material to its decision has been expressly referred to herein.

9. On 23 September 2022, the Tribunal invited the review applicants under s.360 of the Migration Act 1958 to appear before the Tribunal via telephone on 8 November 2022 at 10:00am.

10. Mr Joungchoul Kim appeared before the Tribunal on 8th November 2022 to give evidence and present arguments. The Tribunal also received oral evidence from Mrs Cheenkyong Kim. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

11. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicants. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicants were given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. The issue in the present case is whether Mr Joungchoul Kim had competent English at the time of application: cl.186.222 (a) or was a person in a class of persons specified by the Minister in an instrument for cl.186.222 (b) of Schedule 2 to the Regulations.

    English language proficiency

14. 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 a legislative instrument (IMMI 18/045): 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.

15. ‘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.

16. 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. For paragraph 1.15C(1)(c) of the Regulations, the following test scores are specified:

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

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

    iii. a TOEFL iBT test score with at least the following scores in the four test components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

    iv. a PTE Academic test score of at least 50 in each of the four test components of speaking, reading, writing and listening.

17. For r.1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

18. The Tribunal is satisfied that the applicant holds a passport issued by the Republic of Korea. He therefore does not hold a passport specified in IMMI 15/005, and thus must demonstrate that he has obtained the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 30 May 2019).

19. The delegate in their decision noted that the applicant provided numerous IELTS Test reports in which the applicant achieved less than 6 in all components of the tests.

20. The Tribunal has reviewed the Department file and the numerous IELTS test results provided by the applicant which is summarised in the following table.

Date of Test	Listening	Reading	Writing	Speaking
2 December 2017	4	3.5	3.5	2.5
13 October 2018	4.5	4	5	4
1 December 2018	4	3.5	5	5
2 March 2019	5	4	5.5	4.5
23 March 2019	4.5	3.5	5	5
6 April 2019	4	4	5	5.5

1. The applicant has provided to the Tribunal booking summaries for IELTS tests scheduled for 20 December 2019, 18 January 2020, 21 March 2020 and 31 October 2022 and payment summaries for tests undertaken on 13 March 2021 and 6 August 2022.

2. In regard to the IELTS test undertaken on 31 October 2022, the applicant has provided the Tribunal with an IELTS provisional online test result, in which the applicant achieved 4 in listening, 4 in reading, 6 in writing and 4 in the speaking components of the English test.

3. At the hearing the applicant told the Tribunal that he tried to achieve the relevant English score but couldn’t. He was fully aware at the time of applying for the visa that achieving the English requirement was the biggest challenge. English is not his mother language, and he could not achieve the ‘6’ when he took the test. His employer’s main focus is training younger workers at the company, and this was his priority, training younger staff and working hard hence why it took a long time for him to learn English. He enjoys studying and communicating in English. He doesn’t have many problems with communicating with subcontractors and co-workers and requested the Tribunal take into consideration his most recent English test. The applicant requested that the Tribunal also considers that he and his wife have spent 7 to 8 years in Australia and paid $200,000 in tax. Instead of going back to Korea, he remained in Australia and paid tax and wants to stay in Australia and contribute more. The applicant told the Tribunal that going back to Korea isn’t an issue but as he has nieces and nephews in Korea it is sad that he couldn’t help them if they came to Australia. Mrs Kim told the Tribunal that Mr Kim really wants to improve his English and continues to study English to improve his communication and that she also will improve her English.

4. Having considered the evidence before it, the Tribunal finds that at the time Mr Kim lodged his application with the Department on 30 May 2019, he had not undertaken a language test as specified by the Minister in the 3 years immediately before the day on which the application was made, in which he achieved at least 6 in each of the four test components of listening, reading, writing, and speaking.

5. As the applicant has not provided evidence that he has achieved a specified score in a specified test in the 3 years immediately before the day the application was made; and given the applicant holds a passport issued by the Republic of Korea (which is not of a type specified by the Minister), the applicant does not meet the requirements of r.1.15C. Therefore, the Tribunal must find that the applicant does not have competent English as defined in r.1.15C and as such the applicant does not meet cl.186.222(a).

6. At the time the applicant lodged his subclass 186 visa application on 30 May 2019, the relevant legislative instrument for the purposes of cl.186.222(b) of schedule 2 to the Regulations is IMMI 18/045. The Tribunal notes that IMMI 18/045 provides an exemption for applicants seeking to satisfy cl.186.222(b) under the Temporary Residency Transition stream. For the purposes of cl.186.222(b) and cl.187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

7. There is no evidence before the Tribunal to support that the applicant has completed five years or more full-time study in secondary and /or higher education, with all the tuition in English.

8. The Tribunal therefore cannot be satisfied that the applicant meets the requirements of cl.186.222(b).

9. As the criteria in cl.186.222(a) and cl.186.222(b) are not met, accordingly the requirements in cl.186.222 are not met.

10. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named applicant, Mrs Cheenkyong Kim as a member of Mr Joungchoul Kim’s family unit, is therefore unable to satisfy the criteria for this visa class. As such the second named applicant does not satisfy cl.186.311.

11. 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

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

    Karen McNamara
    Member