Lu (Migration)

[2018] AATA 2678

Lu (Migration) [2018] AATA 2678 (22 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Youmei Lu
Mr Jidong Wang
Mr Wenxiong Wang
Master Wence Wang

CASE NUMBER:  1708174

DIBP REFERENCE(S):  BCC2016/3801085

MEMBER:Ian Berry

DATE:22 June 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 22 June 2018 at 4:03pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 Employer Nomination Scheme – English language proficiency – Vocational English – Only functional English – Not exempt from English criteria – Existence of a sponsor or nominator – Overall band score – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), rr 1.15B, 1.15C, 5.19, Schedule 2 cls 186.212, 186.222, 186.223, 186.311

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 and Border Protection on 27 March 2017 to refuse to grant the applicant’s Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 13 November 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 (Regulations). The primary criteria must be satisfied by at least one applicant, in this case Ms Youmei Lu. Other members of the family unit 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 applicant (Ms Lu) is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of sales and marketing manager. This stream is designed for Subclass 457 visa holders who have worked for their employer for the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations. At the time of the visa application, Ms Lu must have vocational English or fall within a class of persons exempt from having to have vocational English. The delegate found that Ms Lu was not in a class of exempt persons, and had not provided a specified English test in which she had obtained required results for vocational English that she had undertaken prior to making the visa application. Ms Lu had completed an IELTS test with a result of an Overall Band Score of 4.5 which is lower than the standard required for the nominated position.

6. The delegate refused to grant visas to the other applicants (Ms Lu’s husband and children) on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 13 April 2017.  It was accompanied by a copy of the delegate’s decision.

8. The applicants appeared before the Tribunal on 16 May 2018 to give evidence and present arguments. The Tribunal received oral evidence from Ms Lu. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

9. The applicants were represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. The issue in the present case is twofold. Ms Lu did have functional English as assessed by IELTS, though not vocational English as required at the time of making the application. Ms Lu did not have a sponsor/nominator.

    Employment will be provided

12. Clause 186.212 requires that the nominated position will provide the applicant with the employment referred to the related nomination application.

13. Ms Lu’s nominator lodged a nomination application online on 23 January 2015 in relation to the position of ‘sales and marketing manager 131112’.  This application identified the nominee Ms Lu.  The nomination type was listed as ‘Temporary Residence Transition’. The nominator’s application was determined by the Tribunal whereby on 18 February 2016 the delegate’s decision was affirmed and the nomination of Ms Lu was refused.

14. Therefore, cl.186.212 is not met.

    English language proficiency

15. 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 15/083: 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.

16. ‘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 vocational  English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI15/005.

17. Ms Lu’s IELTS test result of 19 March 2016 had an overall band score of 4.5 which was less than the minimum score of 5.0.

18. Ms Lu was not mentioned in the class of persons exempt from the English Language criteria. Ms Lu did not hold a passport exempting her from having a vocational English test result as indicated in cl.186.222(b).

19. Therefore, cl.186.222 is not met.

    Nomination of a position

20. Clause 186.223 requires that for applicants in the Temporary Residence Transition stream, the position to which the application relates is the subject of an application for approval of a nominated position under r.5.19(3) of the Regulations (that is, a Temporary Residence Transition nomination). For those purposes, the applicant must have been identified in the nomination as the relevant Subclass 457 visa holder, and 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.

21. In addition, this criterion also requires that:

    ·the nomination has been approved and has not been subsequently withdrawn

    ·there is no ‘adverse information’ known to Immigration about the person who made the nomination or a person ‘associated with’ that person (within the meaning of r.1.13A and r.1.13B); or it is reasonable to disregard any such information

    ·the position is still available to the applicant, and

    ·the visa application was made no more than six months after the nomination of the position was approved.

22. Ms Lu did not have a nominator or sponsor at the time of the decision for the reasons provided in paragraph 13 of this decision.

23. Therefore, cl.186.223 is not met.

    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.

24. It follows that the remaining applicants do not meet the requirements of cl. 186.311 of Schedule 2 to the Regulations by being a member of the family unit of a person who holds a subclass 186 visa.

25. Therefore, the secondary applicants do not meet clause 186.311

    DECISION

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

    Ian Berry
    Member