Lim (Migration)

[2017] AATA 767

Lim (Migration) [2017] AATA 767 (28 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chee Peng Lim
Mrs Qiuyun Fan
Miss Yingying Fan

CASE NUMBER:  1700114

DIBP REFERENCE(S):  BCC2016/2530076

MEMBER:Mary-Ann Cooper

DATE:28 April 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 28 April 2017 at 9:16am

CATCHWORDS
Migration – Employer Nomination (Permanent)(Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Direct Entry stream – English competency – Not exempt person – IELTS test taken outside specified timeframe – Not within three year period

LEGISLATION
Migration Act 1958, ss 65
Migration Regulations 1994, Schedule 2, cl 186.232, cl 186.311, r 1.15C

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 on 16 December 2016 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 31 July 2016. 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 (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 Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream, to work in the nominated position of Real Estate Agent. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.232 of Schedule 2 to the Regulations because he did not provide evidence that he met the specified English language proficiency requirements and was not an exempt person.

6. The applicant appeared before the Tribunal by telephone on 11 April 2017 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent who also 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 the applicant has the required English language proficiency or is exempt from the criterion.

   English language proficiency

10. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument IMMI 15/083: cl.186.232.

11. ‘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 (r.1.15C(1)); or

    ·holds a specified passport (r.1.15C(2)).

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

13. The specified passports are those of the UK, USA, Canada, New Zealand or Ireland. The specified score for “competent English” is an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening or an Occupational English Test (OET) score of at least “B” in each of the four components of an OET. Alternatively the applicant can demonstrate specified scores in a TOEFL iBT, PTE Academic or a Cambridge English: Advanced (CAE) test.

14. Prior to the hearing the applicant provided several documents to the Tribunal, including another IELTS test and a statutory declaration. The IELTS test, conducted on 4 March 2017, demonstrated English language proficiency greater than that of ‘competent’, the applicant achieving an overall band score of 7.0. In his statutory declaration he outlined the circumstances of his visa application. He acknowledged that he had not sought any advice in completing the form however had relied on the Department’s online advice and checklist. He said that, because his IELTS test was dated 5 August 2013, he considered that it was within the time limit required and wrote this in a note accompanying his application (as confirmed by the Department’s file). He said that he thought time would be measured from the time he got the results, not the time he sat for the exam, because, logically, at that time the result is not known. He stated that his form was not rejected and he received no feedback from the Department regarding his mistake in this respect. He noted that he had recently received his registration as a real estate agent in Western Australia and is competent in several languages. If he is required to depart he claims it will have significant, adverse consequences, not just for his family, but also for his employer.

15. At the hearing, the applicant told the Tribunal that he holds a passport of Singapore. As this is not one of the specified passports in IMMI 15/005, he therefore does not meet the requirements of r.1.15C(2).

16. He also confirmed, as indicated by his visa application, that he had undertaken an IELTS test on 27 July 2013, just outside the three years preceding the day of the visa application (31 July 2016), at which he had achieved scores demonstrating that he had “Competent English”. The applicant acknowledged at the hearing that, although he had received the results of a specified test within the 3 year period, he had not undertaken any of the specified tests within the relevant 3 year period.  

17. On the evidence before the Tribunal, it finds that the applicant, although achieving (and exceeding) the specified scores in a specified language test under r.1.15C, did not undertake the test in the three years immediately before the day on which the application was made, on 31 July 2016. It follows that the Tribunal finds that the applicant does not have ‘competent English’ as defined and therefore does not meet the requirements of cl.186.232(a).

18. The Tribunal has also considered whether the applicant is in a class of exempt persons specified by the Minister in IMMI 15/083 (being the relevant instrument in writing for subparagraph 186.232(b)). As acknowledged by the applicant at the hearing, his salary and earnings are not at least equivalent to the top individual income tax rate of $180,001. While the applicant provided evidence that he had completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English (in Singapore), this exemption in IMI 15/083 does not apply to applicants in the Direct entry stream. Therefore he is not in a class of persons specified for the purposes subparagraph 186.232(b).

19. It follows that the applicant does not meet cl.186.232 of Schedule 2 to the Regulations. As this is an essential criterion for the grant of the visa, the applicant cannot satisfy the criteria for a subclass 186 visa.

20. In submissions, his representative noted that it is frequently the Department’s practice to send a natural justice letter when it is going to refuse an application, allowing the applicant time to withdraw his or her application. She said it was most unfortunate that this opportunity had not been afforded to the applicant as he had applied well in advance of his then visa’s expiry.  She said if the intention of the legislation was to ensure that applicants had the required English language proficiency, then the applicant, by virtue of his education and upbringing in Singapore, had that proficiency and it seemed unfair to deny him the visa on this basis.

21. While having considerable sympathy for the applicant’s circumstances, the Tribunal explained it had no discretion in this matter, however it remained open to the applicants to apply for Ministerial intervention of they thought their circumstances came within the Ministerial guidelines.

22. For the reasons above, the applicant does not meet cl.186.232.

    CONCLUSION

23. 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 and there is no evidence that the applicant might meet the requirements of those 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.

    Secondary applicants

24. The delegate also refused visas to the secondary applicants, the partner and child of the visa applicant and who are included in his application.

25. There is no claim or any evidence before the Tribunal that the remaining applicants meet the primary criteria for the grant of the visa. In addition, to meet clause 186.311, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 186 visa. As the applicant does not satisfy the primary criteria for a subclass 186 visa, or any other subclass, the Tribunal finds that the secondary applicants also do not satisfy clause 186.311 and, therefore, the criteria for a subclass 186 visa, or any other subclass.

    DECISION

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

    Mary-Ann Cooper
    Member