Kpozehouen (Migration)

[2019] AATA 279

Kpozehouen (Migration) [2019] AATA 279 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Elizabeth Benedict Kpozehouen
Dr Pascal Randolph Aboegnonhou Kpozehoeun
Master Joshua Daniel Kpozehouen
Master Timothy Immanuel Kpozehouen
Master Barnabas Matthias Kpozehouen
Master Benjamin Matthew Kpozehouen

CASE NUMBER:  1730128

HOME AFFAIRS REFERENCE(S):           BCC2017/1670744

MEMBER:Wan Shum

DATE:5 February 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 05 February 2019 at 3:56pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Direct Entry stream – competent English – specified language test in the three years preceding the visa application – decision under review affirmed   

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 186.232, 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 Immigration and Border Protection on 27 November 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 186 (Employer Nomination Scheme) visas on 10 May 2017.

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). 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 Direct Entry stream. Under this stream, it is a requirement for the visa that the applicant has competent English at the time of application or is in a class of persons specified by the Minister: cl.186.232 of Schedule 2 to the Regulations.

5. The delegate found that the applicant did not meet cl.186.232 of Schedule 2 to the Regulations and refused to grant the visas.

6. The first and second named applicants appeared before the Tribunal on 31 January 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

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

9. For visa applications made prior to 1 July 2017 an applicant in the Direct Entry stream must, at the time the visa application is made, either have competent English, or be in a class of persons specified in legislative instrument IMMI 15/085: cl.186.232.

10. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English 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.

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

11. The applicant told the Tribunal that she had undertaken an IELTS test prior to making the visa application on 4 May 2017 but had achieved 5.5 in one of the test components. As she did not achieve 6 in each test component, this does not meet the definition of r.1.15C. The applicant told the Tribunal that she had taken other IELTS tests in 2008 and 2012, and also in June and August 2017[1], in which she achieved at least 6 in each of the test components. However, and there is no dispute about this, none of these tests were taken in the 3 years immediately before the visa application was made so cannot meet the definition in r.1.15C. The applicant said that she believed she is competent in English and had obtained a scholarship for PhD study. She has published four papers, two as the first author. Her English has improved since she has been in Australia. The applicant believed the 5.5 result was not correct, but advised that she had not applied for a re-mark because she did not meet the timeframes for doing so.

    [1] Although it appears that the applicant undertook both tests in August 2017 as IELTS results have been provided to the Department for tests taken on 12 August 2017 and 19 August 2017.

12. While this may be the case, the Minister has specified the tests and minimum scores which are acceptable evidence for demonstrating a level of English that meets the requirements for a Subclass 186 visa, and the legislation is clear as to when the test should be undertaken. The applicant has not presented evidence of having achieved the minimum scores required in one of the specified language tests in the 3 years before the visa application was made to meet the definition of competent English in r.1.15C(1). The Tribunal is not able to substitute its own assessment of her English language proficiency.

13. The applicant holds a passport of Tanzania, which is not one of the specified countries to meet r.1.15C(2). She thus does not have competent English as defined in r.1.15C and she does not satisfy cl.186.232(a).

14. In respect of whether she is in a class of persons specified for the purposes of cl.186.232(b), the relevant instrument is IMMI 15/083 which specifies that persons whose earnings will be at least equivalent to the current Australian Tax Office top individual income tax rate. This is the only class of persons who are effectively exempt from meeting the requirement of having “competent English” for a Subclass 186 visa in the Direct Entry steam.

15. The applicant confirmed to the Tribunal that her earnings were not at least equivalent to the current Australian Tax Office top individual income tax rate.

16. Given that the applicant’s earnings were not at least equivalent to the current Australian Tax Office top individual income tax rate, she is not a person in a class of persons specified by the Minister for the purposes of cl.186.232(b) and does not meet cl.186.232(b).

17. Therefore, cl.186.232 is not met.

18. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

    DECISION

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

    Wan Shum
    Member