Lovianditya (Migration)

[2020] AATA 3399

Lovianditya (Migration) [2020] AATA 3399 (19 August 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Winnard Lovianditya
Mrs Fara Amaliah
Miss Shafalia Rayma Lovianditya
Mr Shandon Raihan Lovianditya

CASE NUMBER:  1801915

HOME AFFAIRS REFERENCE(S):          BCC2017/4001873

MEMBER:K. Chapman

DATE:19 August 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 19 August 2020 at 12:01pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – English language proficiency – specified level not achieved in test within three years before application made – specified level achieved in test after application made – redundancy and unemployment – nominated position no longer available – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cls 186.222, 186.223

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 4 January 2018 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (‘the Act’).

2. The first named applicant applied for the visa on 29 October 2017, including the second, third and fourth named applicants in that visa application. 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 Labour Agreement stream.

4. In the present case, the first named applicant (hereafter ‘the applicant’) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Surveyor (ANZSCO 232212). The visa application was made in connection with an application for nomination by Geokinetics (Australasia) Pty Ltd, a company that subsequently changed its name to SAE (Australia) Pty Ltd (‘the nominator’). This change of company name resulted from a take over of the former by the latter.

5. The delegate refused to grant the visas on the basis that the applicant did not demonstrate the required English language proficiency at the time of the visa application in accordance with cl.186.222. On 25 January 2018, the applicant applied to the Tribunal for review of the visa refusal decision providing a copy of that decision with his application for review. Prior to the review hearing, the applicant submitted material including IELTS English language test results, letters regarding his employment, information regarding skill shortages and documents pertaining to the circumstances of his family members. All submitted material has been duly considered by the Tribunal.

6. The applicant appeared by telephone before the Tribunal on 18 August 2020 to give evidence and present arguments. The applicant confirmed that he was comfortable participating in the hearing by telephone. The Tribunal also took oral evidence by telephone from the second named applicant, Mrs Fara Amaliah (the applicant’s spouse).

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The primary issue in the present case is whether the applicant satisfies the requirements of cl.186.222, regarding English language proficiency. A further issue for consideration is whether the nominated position is still available to the applicant as required by cl.186.223(4).

   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 legislative instrument IMMI 17/058: 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’.

10. ‘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.

11. The applicant holds an Indonesian passport and there is no evidence before the Tribunal suggestive of him holding a specified passport for the purpose of r.1.15C. Further, the applicant confirmed to the Tribunal during the review hearing that he has not 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 the English language. Accordingly, the applicant is not in a class of persons exempt from the English language requirement pursuant to instrument IMMI 17/058. Therefore, the applicant must demonstrate that he undertook a specified language test, in the three years preceding the visa application, and achieved a specified score, in order to satisfy cl.186.222.

12. The applicant undertook an IELTS English language test on 10 September 2016. It is not in dispute that the results of that test achieved the standard of Vocational English. The applicant conceded in his oral evidence at the review hearing that this test did not achieve the required standard of Competent English.

13. The applicant also undertook an IELTS English language test on 10 March 2020. It is not in dispute that the results of that test achieved the standard of Competent English. However, the applicant conceded in his oral evidence at the review hearing that this test was not undertaken within the three years immediately before the day on which the Subclass 186 visa application was made, and therefore could not satisfy the requirements of cl.186.222.

14. Following careful consideration of the evidence, the Tribunal finds that the applicant did not undertake a specified English language test, in the three years preceding the visa application, that achieved the specified score demonstrating his possession of Competent English as defined. 

15. On balance, the Tribunal finds that the applicant does not satisfy the requirements of cl.186.222.

    Nomination of a position

16. Clause 186.223 requires that the position to which the application relates is the subject of an application for approval of a nomination in the Temporary Residence Transition stream that identifies the applicant. The position must be the one that was the subject of the declaration that was required to be made as part of the current visa application. Relevantly, this criterion also requires that the nominated position is still available to the applicant: cl.186.223(4).

17. The applicant submitted to the Tribunal a letter from the nominator confirming he was made redundant on 15 May 2020. In oral evidence, the applicant informed the Tribunal that he was currently unemployed and awaiting future offshore work. He cited a downturn in the oil and gas industry, and COVID-19, as reasons for his redundancy and future employment uncertainty. During the review hearing, the applicant conceded in his oral evidence that his employment by the nominator had concluded and the nominated position was no longer available to him.

18. Following careful consideration of the evidence, on balance, the Tribunal finds that the applicant does not satisfy the requirements of cl.186.223(4) as the nominated position is not still available to him. Accordingly, the applicant does not satisfy cl.186.223.

    CONCLUSION

19. 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.

20. It follows that the second, third and fourth named applicants also do not meet the criteria for the grant of the Subclass 186 visa.

21. The Tribunal acknowledges that the applicant has made a useful contribution to Australia through his employment as a Surveyor and that his family members have thrived in the Australian community. However, the Tribunal must apply the law to the facts of this review even if the result is upsetting to the applicants. The result is that the applicants do not satisfy the requirements for the Subclass 186 visas.

    DECISION

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

    K. Chapman
    Member