Nguyen (Migration)

[2018] AATA 3508

Nguyen (Migration) [2018] AATA 3508 (9 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Thi Hai Yen Nguyen
Mr Le Nguyen Hong Tran
Master Michael Tran

CASE NUMBER:  1808522

DIBP REFERENCE(S):  BCC2017/1970333

MEMBER:Alison Mercer

DATE:9 August 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 August 2018 at 3:12pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Requirement to successfully undertake relevant English language test prior to the date of application – Applicant has not successfully undertaken relevant English language test – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15B, Schedule 2, cl 186.222

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 on 9 March 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 applicants applied for the visas on 3 June 2017. 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 Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager. This stream is designed for subclass 457 visa holders who have worked for their employer for the past two years, where that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visas because the delegate found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations as she was required to either demonstrate that she had vocational English or that she was exempt from having to do so. The delegate found that the applicant did not fall within any of the exemption categories and therefore had to demonstrate her English proficiency by undertaking a specified English period with a specified period, in which she obtained the minimum scores for each component of the test. The delegate noted that the applicant had undertaken 13 English tests between September 2016 and March 2018 but had failed to achieve the required scores of each of the tests in a single setting, and that in any case, only tests undertaken in the 3 years prior to the date of lodgment of the visa application could be taken into account. The delegate found that the applicant had no valid nomination that would allow her to be assessed against the Direct Entry or Labour Agreement streams of the subclass 186 visa.

6. The delegate also refused to grant the second and third named applicants (the applicant’s husband and son) subclass 186 visas on the basis that they did not meet the secondary visa criteria requiring them to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 28 March 2018, which was accompanied by a copy of the delegate’s decision. The applicants appointed a registered migration agent, Mr Peter Do, as their representative and authorised recipient for correspondence.

8. On 27 June 2018, the Tribunal wrote to the applicants via their agent to invite them to a hearing on 18 July 2018.

9. On 9 July 2018, the applicants’ agent’s office wrote to the Tribunal to request that the hearing be postponed on the basis that the agent had to attend another Tribunal hearing in Sydney on 17 July 2018, and no other agent was available. In addition, the agent was outside Australia at present and returned on 14 July 2018.

10. On 16 July 2018, the Tribunal advised the applicants’ agent in writing that the Presiding Member declined to reschedule the hearing, but that it would be possible for the agent to attend by telephone and to make a request for additional time after the hearing to provide further submissions.

11. On the morning of 18 July 2018, the applicants’ agent emailed the Tribunal to advise that there would be no attendance by the applicants at the hearing later that morning.

12. On 23 July 2018, the Tribunal wrote to the applicants via their agent to advise that it did not intend to schedule another hearing and that they should provide any submissions and/or documents they wished to make to the Tribunal by the close of business on 27 July 2018.

13. The Tribunal did not receive any further documents or submissions, or communications of any kind, by close of business on 27 July 2018 (and had not received any as at the date of its decision).

14. Given the above, the Tribunal has proceeded to make its decision on the available evidence, without offering another hearing, as it is required to do pursuant to ss.360(2)(b) and (3) of the Act.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

16. 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 12/059: 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.

17. ‘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 IMMI 15/005.

18. Having reviewed the material before it, the Tribunal makes the following findings:

    ·the applicant is a Vietnamese national;

    ·she applied for a subclass 186 visa in the Temporary Residence Transitional stream on 3 June 2017 on the basis that she was nominated by her Australian employer in the occupation of Café or Restaurant Manager; and

    ·in the 3 years immediately prior to making the subclass 186 visa application, the applicant undertook 10 International English Language Testing System (IELTS) tests and 1 Pearson Test of English (PTE) Academic test but did not obtain scores of at least 5 in all 4 components of an IELTS test in a single sitting, or at least 36 in all 4 components of a PTE Academic Test in a single setting

19. For visa applications made on or after 1 July 2015, and prior to 1 July 2017, IMMI 15/083 specifies the following persons are exempt for the purposes of cl.186.222(b):

    ·persons whose earnings will be at least equivalent to the current Australian Tax Office top individual tax rate (currently $180,001); and/or

    ·persons who have completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

20. The delegate found that the applicant was not exempt in the primary decision, a copy of which the applicant provided to the Tribunal with her review application. The Tribunal concurs, as there is no evidence to suggest that the applicant, in her nominated position of Café or Restaurant Manager, is being paid, or would be paid, $180,001 or more per year (the salary listed in the employer contract provided to the Department with her visa application is $55,000 per year plus 9.5% superannuation). Similarly, no evidence has been provided to establish that the applicant has completed at least 5 years of full time study in a secondary and/or higher education institution where all of the tuition was delivered in English, and she has not claimed to have done so. The CV provided by the applicant with her visa application to the Department indicates that she had undertaken a Certificate IV in Business at Baxter Institute in Australia in 2012 and is undertaking a Diploma of Business at the same institute, as yet uncompleted in 2013. The applicant lists no other schooling or qualifications undertaken in English either in Australia, Vietnam or elsewhere, and has not provided any such evidence in response to the Tribunal’s most recent letter. The Tribunal notes that a Certificate IV is typically less than 12 months, and it is unclear how many years of further study (if any) the applicant completed of the Diploma of Business after completing the Certificate IV in Business in 2012.  Accordingly, the Tribunal is not satisfied, on the available evidence, that the applicant has completed at least 5 years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

21. The Tribunal therefore finds that she does not meet cl.186.222(b).

22. In relation to cl.186.222(a), the Tribunal finds that the applicant does not hold a passport specified in IMMI 15/005 by r.1.15B(2), and therefore must establish she has vocational English by meeting the requirement to have undertaken a specified English test in the 3 years immediately prior to making her subclass 186 visa application in which she obtained the specified scores in a single sitting (see item 5 of IMMI 15/005 and r.1.15B(bb)).

23. The Tribunal is satisfied that item 5 of IMMI 15/005 provides that an IELTS test and a PTE Academic English test are both specified tests. The item further specifies that for an IELTS test, the specified scores are at least 5 in each of the 4 test components, and for a PTE Academic English test, the specified scores are at least 36 in each of the 4 test components. The Tribunal is further satisfied, from having reviewed the applicant’s file, that the applicant’s test results in the relevant 3 year period (being 2 June 2014 to 2 June 2017) are as follows:

Date	Test	Listening	Reading	Writing	Speaking
IELTS	10/9/16	5	4	5.5	5
IELTS	3/12/16	4.5	4	5	5
IELTS	7/1/17	5	3.5	5	5
IELTS	16/2/17	5	4	5	5
IELTS	4/3/17	4	4	5	5
IELTS	25/3/17	4.5	4	5	5
IELTS	8/4/17	5	4	4.5	5
IELTS	29/4/17	4.5	4	5.5	5
IELTS	13/5/17	5	4.5	4	5
IELTS	25/5/17	5	4	5	5.5
PTE	2/6/17	34	36	42	31

1. The Tribunal notes that the applicant also undertook a further IELTS test on 3 June 2017 and further PTE Academic English tests on 13 June 2017, 5 September 2017 and 5 March 2018; however, these tests fall outside the period of 3 years immediately before the date on which the subclass 186 visa application was made and cannot be counted (as per r.1.15B(bb)).

2. The Tribunal further notes that the delegate refers to a PTE Academic English test undertaken by the applicant on 13 June 2016, in which she obtained scores of 42 for listening, 63 for reading, 46 for writing and 48 for speaking. However, after careful examination of the Department’s electronic file, the Tribunal has been unable to locate this test report form or any correspondence connected with it.

3. The Tribunal is satisfied that none of the applicant’s IELTS test above meet the required minimum of at least 5 in each of the 4 test components in one sitting. Similarly, in neither of the 2 PTE Academic English tests that the applicant sat in the relevant period was she able to achieve the required score of at least 36 in each of the 4 test components in one sitting. The Tribunal acknowledges that the applicant clearly tried hard to do so and undertook numerous IELTS and PTE tests in the relevant period in which her scores were close to what was required. However, the Tribunal is not able to overlook or waive the terms of r.1.15B and IMMI 15/055 to find that these meet the applicable definition of ‘vocational English.’

4. While it appears that at in at least 3 of the PTE Academic English tests that the applicant undertook after 3 June 2017, she achieved the required scores in each of the 4 test components in a single setting, as already stated, these cannot be taken into account by the Tribunal to satisfy cl.186.222(a) as r.1.15B(bb) restricts the Tribunal’s consideration to only tests undertaken in the period of 3 years ending immediately before the date of the visa application. As also already stated, the Tribunal has no power to waive or overlook this temporal requirement.

5. Accordingly, the Tribunal finds that cl.186.222(a) is not met, and that the applicant therefore does not meet cl.186.222.

6. 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.

7. The Tribunal must also affirm the decision not to grant visas to the second and third named applicants, as their applications were based on their being members of the applicant’s family unit, and the Tribunal must find that they do not meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa. Nor is there any evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right.

   DECISION

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

   Alison Mercer
   Member