LI (Migration)

[2019] AATA 1273

LI (Migration) [2019] AATA 1273 (17 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Huixian LI
Mr Zhibin ZHU
Master Ziming ZHU
Mr Zhuowei ZHU

CASE NUMBER:  1822221

HOME AFFAIRS REFERENCE(S):           BCC2017/4720405

MEMBER:Wan Shum

DATE:17 January 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 17 January 2019 at 11:36am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Program or Project Administrator – did not provide evidence of competent English at time of application – not exempt from English language requirements – migration agent provided incorrect advice – not appropriate case to refer to Minister – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), r 1.15, 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 23 July 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) Subclass 186 (Employer Nomination Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 December 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 Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator.

5. The delegate found that the applicant did not provide evidence of having competent English at the time of application. Nor was she a specified person such that she was exempt from meeting the English language criteria. The delegate found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations and refused to grant the visas.

6. The applicants were represented in relation to the review by a registered migration agent. The representative forwarded the results of a PTE test and requested that a decision be made on the basis of these results without a hearing. However, the Tribunal was unable to make a favourable finding on the basis of the information presented, and informed the applicants of this prior to the hearing.

7. The applicants appeared before the Tribunal on 13 December 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages. Their representative also attended.

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 the applicant has the required level of English proficiency for the visa.

10. At the time the visa application was 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 the applicable legislative instrument: 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 r.1.15B and ‘competent English’ is defined in r.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 told the Tribunal that she had not undertaken an English language test prior to making the visa application for the permanent visa as she did not realise that this was a requirement. She had done a test for the 457 visa and achieved at least 6 in each of the test components. She had relied on the advice of a migration agent, who has since had her registration cancelled and, as of 28 November 2018, is barred from registration for a period of 5 years. The applicant said that there were already complaints filed against that agent in June 2017, but this was not reflected on the department’s website. The applicant expressed the view that the department has a duty to ensure that registered migration agents provide sound advice. She believed she should be given another chance because it was the fault of her former migration agent. The Tribunal acknowledges that a decision was made to bar the agent from registration, but notes that this decision was made following a complaint from an unrelated party in respect of excessive charges and being unaware of a nomination made in respect of an applicant for a visa. It does not appear to be relevant to the applicant’s particular circumstances, of not having been made aware of one of the requirements for a permanent visa.

13. It is possible that the applicant was not informed of the requirement to have an English language test for the permanent visa. Nonetheless, it is a criterion that must be met in order for the visa to be granted. There is no evidence before the Tribunal that the applicant undertook one of the specified English languages tests in the 3 years prior to her application being made. The applicant holds a passport of People's Republic of China, which is not one of the specified countries. She thus does not have competent English as defined in r.1.15C.

14. In respect of whether she was in an exempt class of persons, the applicant has not claimed, and there is no evidence, that she completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

15. The Tribunal has considered all of the evidence before it. As she does not have competent English as defined and she is not in an exempt class of persons, cl.186.222 is not met.

16. The applicants have requested that the Tribunal refer their case to the Minister. Their current representative provided a written submission following the hearing stating that there were relevant compelling or compassionate circumstances, and attaching the applicant’s previous IELTS test results from November 2012 and March 2013. In each of these tests she achieved at least 6 in each of the test components; however both of these tests were taken more than 3 years prior to her application being lodged. The representative also referred to the more recent PTE test undertaken by the applicant which shows that she achieved a minimum of 50 in each of the test components. The submission refers to the applicant having used the services of another registered migration agent and solicitor to lodge her Subclass 457 application and the current Subclass 186 application. The solicitor had advised her that she met the English language requirements, but had failed to consider r.1.15C(1)(bb). The applicant had checked the MARA register around the time her Subclass 186 application was lodged as a precautionary measure, and was not made aware of any issues. In addition, it was stated that both the applicant and her husband, the second named applicant, are working for the nominator, TNR Communications Pty Ltd, and that their eldest son is about to start Year 12 while the youngest son has been offered a place in an opportunity class next year.  It was submitted that the applicant’s occupation is no longer on the Medium and Long-term Strategic Skills List, such that she would be unable to make an application for permanent residency under the Subclass 482. It was submitted that at all times, she had acted in good faith.

17. The Tribunal was also provided with a further statement from the applicant, her youngest son, and her employer.

18. Under s.351 of the Act, the Minister may substitute for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks it is in the public interest to do so.  The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for his consideration.  The power under s.351 of the Act may only be exercised by the Minister personally.  Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant, or another person, or in any other circumstances.

19. The Tribunal has considered whether this is an appropriate case to refer to the Minister for his intervention. The Tribunal has sympathy for the applicant and is prepared to accept that she relied on the advice and assistance of a solicitor who appears not to have advised the applicant that she needed additional evidence for the grant of the permanent visa. However, having regard to the Minister’s guidelines, it has decided not to refer the matter. It notes that the applicants are now in a position to approach the Minister themselves to request that he intervene in their case.

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.

    DECISION

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

    Wan Shum
    Member