Marawa (Migration)

[2017] AATA 2620

Marawa (Migration) [2017] AATA 2620 (30 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jeremaia Kurusiga Marawa
Mrs Vetinia Loata Marawa
Miss Esther Ranadi Elina Marawa
Mr Jeremaia Daniel Vuruya Beniame Ponipate Samson Marawa
Miss Lusiana Elizabeth Divuratoga Marawa

CASE NUMBER:  1711662

DIBP REFERENCE(S):  BCC2016/3081120 BCC2017/2128800

MEMBER:Hugh Sanderson

DATE:30 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 30 November 2017 at 9:55am

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 – Direct Entry stream – Members of the family unit – Competent English – Ministerial intervention sought – Nominated occupation no longer listed for Subclass 186 visas

LEGISLATION
Migration Act 1958 s 65
Migration Regulations 1994 r 1.15C Schedule 2 cl 186.232

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 22 May 2017 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 16 September 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. 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 the applicant was unable to establish that he had competent English as defined in reg.1.15C.

   Background

6. The applicant is a citizen of Fiji. The second named applicants are his wife and children. The only basis of their applications is that they are members of the family unit of a person who meets the primary criteria and are relying upon the applicant to meet the primary criteria.

7. When the application was filed on 16 September 2016, the applicant provided an International English Language Test System (IELTS) report dated 11 July 2015. This showed that the applicant had achieved the following results:

   Listening – 5.5;

   Reading – 6.0;

   Writing – 6.0;

   Speaking – 7.0; and

   Overall band score – 6.0.

8. The delegate who considered the application noted that to meet the requirements of competent English the test the applicant was required to undertake must have been conducted in the three years immediately before the day on which the application was made. The delegate noted that the applicant was required to achieve an IELTS test score, as specified in IMMI 15/005, of at least 6.0 in each of the test components of listening, reading, writing and speaking.

9. The delegate found that as the applicant only achieved a test score of 5.5 in listening he did not meet the criteria of having competent English. The delegate found that the applicant did not meet any of the alternate criteria or was exempt from the English-language criteria. Accordingly, the delegate found that the applicant did not meet the criteria in cl.186.232 and refused the application. As the applicant did not meet the criteria for the grant of the visa, the second named visa applicants were not members of the family unit of someone who met the primary criteria and accordingly there applications were refused.

   Information to the Tribunal

10. The applicant wrote to the Tribunal arguing that when he sat for his IELTS exam the speakers in the auditorium were muffled which affected the results of his listening test. When he lodged his application he was confused as the requirements between the two streams of direct entry and temporary residence transition which required different IELTS scores. Had he been aware of this, he could have easily redone his IELTS exam.

11. The applicant and his wife made various submissions as to why he should be allowed to remain in Australia. Statements were provided by his employer and other people in support of the application.

12. The applicant provided further IELTS test report form dated 3 June 2017 where he recorded the following results:

    Listening – 7.5;

    Reading – 7.5;

    Writing – 6.5;

    Speaking – 7.0; and

    Overall band score – 7.0

13. The applicant made the following claims in respect of the application:

    ·He was required to apply for the visa under the Direct Entry Stream because he could not apply in time under the Temporary Residence Transition Stream before his subclass 457 visa had lapsed;

    ·He lodged the application without the assistance of an immigration agent due to the expenses he faced;

    ·He “accidentally overlooked the IELTS requirements for the two different streams”;

    ·He was not contacted by the Department regarding his IELTS results and if he had been, he was confident that he could have resat the exam and achieve the required results;

    ·It was due to the poor speaker system used during the listening test that led to his poor score in the test obtain prior to filing the application;

    ·He has good functional English as his most recent results prove;

    ·He completed all his studies from primary school in Australia;

    ·It was an oversight that he lodged the application with the IELTS score not meeting the criteria and if he had been aware of this, he would have sat for the test again and met the criteria;

    ·The recent changes to the Skilled Occupation List have removed Environment Health Officer which means that the applicant now would not be able to apply for the visa to remain in Australia;

    ·All other requirements for the visa have been met;

    ·The Department’s online instructions for the visa application, in particular the English language requirements for the different types of visas, and the uploading process of all the documents required was not user-friendly;

    ·The Department never gave the applicant a courtesy call about the details he provided with the visa application; and

    ·The refusal of the visa would have a devastating effect on his family’s situation and if they were required to return to Fiji this would cause significant hardship for them all, especially his children.

14. The applicants appeared before the Tribunal on 24 November 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s employer.

15. The applicant confirmed he did not meet the English language requirements at the time of the application. He requested the Tribunal support an application for Ministerial intervention.

16. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed. The Tribunal considers that this is an appropriate case for Ministerial intervention.

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets the English language proficiency requirements at the time of the application.

    English language proficiency

18. 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 IMMI15/083: cl.186.232.

19. ‘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; or

    ·holds a specified passport.

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

20. The applicant is a citizen of Fiji and his earnings will not be at least equivalent to the current Australian Tax Offices top individual tax rate. He is not, therefore, exempt from meeting the requirement to show that he has competent English at the time of the application.

21. The evidence the applicant provided at the time of the application that he had competent English was the IELTS test results dated 11 July 2015. In order to meet the requirement to have competent English using this system, the applicant was required to have a test score of at least 6.0 in each of the four test components of listening, reading, writing and speaking. As the applicant only scored 5.5 for the listening component, he did not achieve the required result.

22. As the applicant has not provided the required evidence that he has competent English as defined in reg.1.15C and IMMI 15/005 he does not meet the criteria in cl.186.232.

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. 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.

24. As the applications for the second named visa applicants are based on the fact that they are members of the family unit of a person who meets the primary criteria and as the applicant does not meet the primary criteria, the decisions to refuse their applications must also be affirmed.

    Ministerial intervention

25. The applicant is requesting Ministerial intervention with respect to his application. The Tribunal supports this application on the following basis:

    ·The applicant believed the IELTS results he obtained over a year before he applied for the visa met the requirements as he overlooked the different standard between the English language requirements for the Temporary Residence Transition Stream which required scores of at least 5.0 and the Direct Entry Stream which required scores of at least 6.0 for each component;

    ·The applicant undertook a further IELTS exam in June 2017 which gave him a score of 7.5 for listening with an overall band score of 7.0 which would indicate that when he did file the application it is likely that he would have met the English language requirements of having competent English if he had sat for another exam prior to filing the application;

    ·Tamworth Regional Council, his employer and sponsor, has a high opinion of the applicant and his work ethic and is considered a valued employee;

    ·The Council have invested significant amounts in the training of the applicant as they consider him a person of great potential and a valuable;

    ·The Council have experienced in the past, and continue to experience, significant difficulty in recruiting suitably qualified people for the position the applicant is currently employed;

    ·If the visa were refused, the Council would have difficult difficulty in finding an alternative appropriately qualified person to employee in the position the applicant currently holds;

    ·The applicant has undergone a VETASSESS Skilled Migration Assessment which gave a positive finding as to his capacity to undertake the nominated occupation of Environmental Health Officer;

    ·The changes to the specification of occupations for subclass 186 visas introduced on 28 June 2017 no longer includes the position of Environmental Health Officer;

    ·The applicant would otherwise meet the criteria for the grant of the visa;

    ·The applicant and his family have become well integrated and valuable members of the Tamworth community including contributing to the North-west Church at Tamworth; and

    ·The applicant and his family would encounter significant difficulties if they were required to return to live in Fiji.

26. In all the circumstances, and in particular the limited issue on which the applicant does not meet the criteria for the grant of the visa, the support the applicant has from his employer and the difficulties his employer in regional NSW would face if the application were refused, the Tribunal supports the request or Ministerial intervention. The Tribunal will refer the matter to the Department to considered Ministerial intervention.

    DECISION

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

    Hugh Sanderson
    Member