Lin (Migration) - [2022] AATA 4242

Lin (Migration) [2022] AATA 4242 (3 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Pengxiang Lin
Ms Zuanzhen Huang
REPRESENTATIVE:  Mr Weijing Lin (MARN: 0208575)
CASE NUMBER:  1922773
HOME AFFAIRS REFERENCE(S):          BCC2019/1586589
MEMBER:Namoi Dougall
DATE:3 November 2022
PLACE OF DECISION:  Sydney
DECISION:The Tribunal remits the application for Employer Nomination (Permanent) (Class EN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 186 (Employer Nomination Scheme) visa:
·cl 186.222 of Schedule 2 to the Regulations; and
And the secondary applicant meets the following criteria for Subclass 186 – Employment Nomination Scheme visas:
·cl 186.313 of Schedule 2 to the Regulations

Statement made on 03 November 2022 at 10:17pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Cook – applicant has completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English – applicant meets the exemption category – decision under review remitted

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, r 1.13, Schedule 2, cls 186.222, 186.313

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 July 2019 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 29 March 2019. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).
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.
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 Cook.
The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not have competent English and was not in a class of persons exempt from that requirement.
The applicants were represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

The issue in the present case is whether the English language proficiency criteria is met as set out in cl 186.222.

English language proficiency

At the time the visa application is made,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Lin (Migration) [2022] AATA 4242
Case: [2022] AATA 4242
Decision Date: 3 November 2022

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Ms Lin for a Subclass 186 Employer Nomination (Permanent) (Class EN) Visa, specifically under the Temporary Residence Transition stream. The dispute concerned whether Ms Lin met the English language requirement for the visa, or an exemption to that requirement.

The primary legal issue before the Tribunal was whether Ms Lin qualified for an exemption from the English language proficiency requirement. This exemption applied if the applicant had completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.

The Tribunal found that Ms Lin had provided sufficient evidence to demonstrate that she had completed a minimum of five years of full-time study at institutions where all tuition was delivered in English. Accordingly, the Tribunal concluded that Ms Lin met the exemption category for the English language requirement. The decision under review, which had refused the visa, was therefore set aside and remitted to the Immigration Assessment Authority for reconsideration.

Orders