Lee (Migration)

[2022] AATA 921

Lee (Migration) [2022] AATA 921 (19 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dongchun Lee
Ms Arum Cho

REPRESENTATIVE:  Ms Anna Lee (MARN: 9682779)

CASE NUMBER:  2102890

HOME AFFAIRS REFERENCE(S):          BCC2020/2140780

MEMBER:Sheridan Lee

DATE:19 April 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 19 April 2022 at 4:46pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – baker – English language proficiency – sat specified test but did not achieve required score – work experience and integration into community – no discretion to waive requirement – request for referral for ministerial consideration not accepted – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 186.22

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 18 February 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 21 August 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 Baker.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations, which required that the applicant had competent English, or was in a class of person specified by the Minister, at the time of application.

6. The applicants appeared before the Tribunal via telephone on 7 April 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

9. 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: cl 186.222. For visa made on or after 1 July 2017 the level required is competent English.

10. ‘Competent English’ is defined in reg 1.15C of the Regulations. 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.

11. In this instance, the relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

12. Having reviewed the departmental file, the Tribunal determined that the applicant completed a Pearson Test of English Academic (PTE Academic) on 11 August 2020, however he did not achieve the necessary score of 50 in each of the four components. The applicant sat earlier tests but did not achieve the required score on any attempt.

13. The applicant holds a passport issued by the Republic of Korea, which is not a passport specified in IMMI 15/005.

14. At the time of the visa application, there were no exemptions to the English language requirement specified by the Minister.

15. On 29 March 2022, the Tribunal received submissions from the applicant’s representative. The submissions acknowledged that the applicant did not achieve the necessary test scores, however he sought a favourable outcome in recognition of his work experience and integration into the Australian community.

16. The applicant provided an Australian Taxation Office income statement, reporting his income for the 2020-2021 financial. He also supplied payslips and a notice of assessment and letters of support from his employer, a friend and church pastor.

17. As discussed with the applicant at the hearing, the Tribunal does not have the discretion to remit the application for compassionate or other reasons. It must apply the law to the circumstances of the case. In this case, the applicant does not meet the requirements for the grant of the visa. Clause 186.222 is not met.

18. At the hearing, the applicant’s representative made a request for the matter to be flagged for the possible exercise of the Minister’s discretion under s.351 of the Act. Having considered the guidelines, I do not consider the matter suitable for referral to the Minister.

19. I note that the applicant is not precluded from making a request for ministerial intervention upon receipt of this merits review decision.

20. 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.

21. As the applicant does not satisfy the primary criteria, I must find that the second named applicant does not satisfy the secondary criteria as required by cl.186.311.

    DECISION

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

    Sheridan Lee
    Member