Kumar (Migration)

[2024] AATA 1110

Kumar (Migration) [2024] AATA 1110 (7 May 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vikash Kumar
Mrs Poonam Vikash Kumar
Master Viresh Kumar Jesrani
Miss Vaani Jesrani

REPRESENTATIVE:  Mr Rex Howard (MARN: 9251016)

CASE NUMBER:  2200509

HOME AFFAIRS REFERENCE(S):          BCC2020/621443

MEMBER:Ian Berry

DATE:7 May 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 07 May 2024 at 2:23pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Café or Restaurant Manager – vocational English – specified language test in the three years preceding the visa application – no evidence of secondary or higher level full-time study in English – decision under review affirmed        

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 186.221, 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 23 December 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 1 March 2020. 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 Café or Restaurant 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 standard of English required was not met.

6. The applicants appeared before the Tribunal on 6 February 2024 to give evidence and present arguments. The hearing was conducted through Teams audiovisual link.

7. The applicants were represented in relation to the review.  The applicant’s representative attended the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether:

   (a) the applicant has attained the standard of English required in accordance with the legislative instrument: LIN 16/216, or

   (b)if the applicant had not attained that standard of English required, then has he qualified for exemption under an instrument?

   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 LIN 19/216: 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 applicants made their application on 1 March 2020.  Under the heading “English language proficiency” the application stated a question whether the applicant had studied in a secondary and/or tertiary institution where the instruction was in English.  He responded “Yes”.  The following question asked for details to which the applicant responded, “English Proficiency Certificates will be attached in the documents with the medium of instruction of Lectures are in English Language.”.  In response to the question as to whether the applicant had undertaken and English test in last 36 months he responded “No”.  While it may be irrelevant, for reasons later explained, the applicant has provided some documentation of having completed some years in being taught in a secondary school where the tuition was in English.  It seems that the period was from April 2000 to April 2002.

13. Lastly, the question was asked of the applicant “does the applicant have at least functional English language ability”, to which she responded “Yes”.  In his evidence at the hearing, the applicant indicated that while holding a 457 Visa, he had attained functional English.  However, that is inapplicable for an applicant who made an application after 2017.

14. At the end of the applicant’s visa application the following was stated under the heading “Evidence”:

    “Give details as to why the applicant will not be providing attachments prior to lodging this application.  VISA IS EXPIRING SOON AND IMMI SYSTEM WILL BE PLANNED MAINTENANCE BY DEPARTMENT”.

15. The applicant did not provide evidence, by way of information or documents, either relating to an English test result of a test taken prior to the making of the visa application or relating to his undertaking secondary education or higher where that all those courses were taught in English, other than as stated in this decision.

16. The applicant did provide a Pearson/PTE academic test result made on 15 January 2021 where the applicant attained an overall score of 55 with the following categories scores – Listening 50, Reading 56, Speaking 77 and Writing 48.

17. The delegate’s decision made on 23 December 2021, decided the applicant did not satisfy reg 186.222.  The delegate’s decision referred to the applicant declaring he had undertaken and English language test within the last 36 months and provided in his application a PTE Academic test score dated 31 October 2017 and stating the overall band score of Listening 53, Reading 45, Writing 54, and Speaking 51, with the overall band score of 50.  That test score result was not provided with this application and had not been provided thereafter.  Further, the applicant did not provide any information corroborating the applicant attaining competent English through an English test result under IMMI 15/005.  In any event, the applicant’s test result is not of competent English.

18. Further, the applicant has not provided any corroborating evidence relating to his holding a passport of a country other than Pakistan.

19. The applicant claimed to have studied in a secondary and / or tertiary institution where the instruction was in English. 

20. There is no exemption available to the applicant for him not to provide an English test result as required by IMMI 15/005 or any exemption.

21. The applicant has not made a submission indicating any other basis upon which he is exempt from satisfying the competent English criteria in respect of the visa to which has applied.

22. The applicant did not provide a submission specifically dealing with any particular exemption.  Regulation 186.222(b).  However, the applicant’s visa application strongly suggests he wishes to claim that he has undertaken at least 5 years of full-time study at a secondary or higher level where that study was all taught in English.  As previously stated, insufficient evidence has been provided of his undertaking 5 years full-time study.  LIN 19/216 only provides for that exemption if the applicant was applying for a 187 Visa (or the equivalent 494 Visa).  The only reference in LIN 19/216 is regulation 186.221(b) providing for an exemption as to age only.

23. 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.

24. Therefore, cl 186.222 is not met.

    Secondary applicant

25. In respect of the other applicants, not including the primary applicant, (the secondary applicants) the Tribunal notes there is no information before it to suggest that any secondary applicant meets 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 all 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

    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.