LIN (Migration)

[2019] AATA 3195

LIN (Migration) [2019] AATA 3195 (24 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr XIUMING LIN
Mrs YUFANG CHEN

CASE NUMBER:  1912052

HOME AFFAIRS REFERENCE(S):          BCC2018/3373499

MEMBER:Mr S Norman

DATE:24 July 2019

PLACE OF DECISION:  Sydney

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

Statement made on 24 July 2019 at 2:48pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Chief Executive or Managing Director – English language proficiency  – did not undertake specified language test – top tax rate exemption removed – Ministerial Intervention requested – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 187.222

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act). The Department delegate’s decision was lodged with the Tribunal.

2. The applicants applied for the visas on 6 September 2018. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry 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 Chief Executive or Managing Director.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.222 of Schedule 2 to the Regulations – English language proficiency.

6. The first named applicant appeared before the Tribunal on 23 July 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

8. On 6 September 2018, the first named applicant (the applicant) lodged an application for a Subclass 187 visa under the Temporary Residence Transition Stream. This related to an appointment as a Chief Executive or Managing Director (ANZSCO: 111111).

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 legislative instrument IMMI 18/045: cl.187.222. Clause 187.222 stated:

   187.222 

   At the time of application, the applicant:

   (a)  had competent English; or

   (b)  was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

10. For visa applications made before 1 July 2017 the level required was vocational English and for visa applications made on or after 1 July 2017 the level required is competent English. ‘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.  

11. In the present case, and having regard to the date of the visa application, the required level is competent English. Regulation 1.15C stated:

    (1)  A person has competent English if:

    (a)  the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the person is an applicant for a visa; and

    (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and  

    (c)  the person achieved a score specified in the instrument.   

    (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

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

    5.  SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:
    …..
    D - for paragraph 1.15C(1)(a), the following language tests:

    i.an International English Language Test System (IELTS) test; or

    ii. an Occupational English Test (OET); or

    iii. a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv. a Pearson Test of English Academic (PTE Academic); or

    v. a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.- for paragraph 1.15C(1)(c) the following test scores:
    i. an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or
    ii. an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or
    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or
    iv. a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or
    v. a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading, writing and speaking.

    F.- for subregulation 1.15C(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

13. Further, IMMI 18/045 relevantly stated:

    PART 2 - 10 Exemptions to ‘vocational English’ or ‘competent English’ requirement for applicants for a Subclass 186 visa or Subclass 187 visa

    For the purposes of paragraphs 186.222(b) and 187.222(b) of Schedule 2 to the Regulations, persons who, at the date of application for a Subclass 186 visa or a Subclass 187 visa, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, are specified.

14. The delegate noted that amongst other things, the applicant lodged the following:

    ·     Original and English Translation of Graduation Certificate in Rural Economic Management – issued in China

    ·     Information provided in the application form

15. The delegate then concluded the applicant had not provided evidence of having competent English, as specified in the relevant instrument in writing. Therefore, the applicant did not satisfy cl.187.222(a). Next, the delegate said the (PRC citizen) applicant was not mentioned in a class of persons who are exempt from the English language criteria, and therefore, the applicant did not satisfy cl.187.222(b). Therefore, the applicant did not satisfy cl.187.222.

16. Next, the delegate considered cl.187.311 - member of the family unit. However, as none of the applicants satisfied the primary criteria for the grant of the visa, none were able to satisfy cl.187.311. The delegate then refused to grant the applicants a Subclass 187 visa.

17. On 1 April 2019, the Tribunal requested the applicant provide evidence of competent English and other supporting documents. The applicant subsequently lodged the following:

    ·     letter of support from Kempsey Shire Council endorsing his Subclass 187 visa application for exemption for English Language

    ·     the applicant’s request for exemption of the English Requirement

18. In the Tribunal hearing invitation letter dated 17 June 2019, it was also stated:

    Please provide, prior to the hearing, evidence that you meet the English language requirements in relation to the visa which is the subject of the review.

19. The applicant and his agent did provide evidence and submissions to the Tribunal prior to the hearing but that information principally related to the nature and success of the applicant’s business. Amongst other things, the agent also referred to IMMI 12/059, and advised that the applicant’s earnings (said to be AUS260,000) exempted him from being required to undertake an English language test. The Tribunal acknowledged that the top tax rate exemption was removed on 1 July 2019, and the current legislative instrument is IMMI 18/045.

20. At the hearing a range of other matters, principally about the applicant’s business, were discussed. However, the Tribunal advised that it remained obligated to consider whether the applicant met the criteria in cl.187.222.

21. That being said, based on the evidence presently before it, the Tribunal is not satisfied the Chinese citizen applicant met cl.187.222. That is because the evidence has not satisfied the Tribunal:

    ·     That the applicant had undertaken a specified language test in the three years preceding the lodgement of the Subclass 187 visa application and achieved a specified score; or 

    ·     That he held a specified passport; or

    ·     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.

22. Therefore, cl.187.222 is not met.

23. Next, the Tribunal has also considered cl.187.311 - member of the family unit. However, as none of the applicants satisfied the primary criteria for the grant of the visa, none were able to satisfy cl.187.311.

24. The applicant has only sought to satisfy the criteria for a Subclass 187 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.

    Non-compellable humanitarian discretion

25. The applicant (by his agent) advised the Tribunal that (subject to its decision) they would consider referring this case to the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

26. The Tribunal notes the visa applicant had previously held Temporary Work visa/s in Australia, and that if he had lodged the Subclass 187 visa application approximately six months earlier than he did, he may have been exempt from passing the English language test (which is the subject of this decision). The Tribunal has also not tested the evidence relating to (ie) the size of the applicant’s (apparently substantial) business in the Kempsey area (employing up to approximately 60 casual staff – and enjoying the written support of the local Mayor[1]), or the sum of money already invested by the applicant in that business (said to be many millions).

    [1] Tribunal – folio 36.

27. Be that as it may, it is possible there could be an exceptional economic benefit resulting from the applicant being permitted to remain in Australia; and it is also possible these may be circumstances not anticipated by relevant legislation; or that they have led to an unfair or unreasonable result in a particular case.

28. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

    DECISION

29. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Mr S Norman 
    Member