Pagobo (Migration)

[2024] AATA 3199

Pagobo (Migration) [2024] AATA 3199 (27 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Junilo Pagobo
Ms Marites Pagobo
Mr Christian Paul Pagobo
Ms Leslie Kate Pagobo
Mr Anton Nikolai Pagobo
Mr Jake Marcus Pagobo

CASE NUMBER:  2318942

HOME AFFAIRS REFERENCE(S):          BCC2023/2774761

MEMBER:Peter Emmerton

DATE:27 August 2024

PLACE OF DECISION:  Adelaide

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

Statement made on 27 August 2024 at 12:43pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visas – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – software engineer – English language proficiency – competent English – test successfully undertaken after receiving notice of refusal decision – misunderstanding of process by applicant and employer – recent change of requirement from ‘vocational’ to ‘proficient’ level – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C(1)(a), Schedule 2, cl 186.222(a)

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 21 November 2023 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 17 May 2023. 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 (Cth) (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 (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Software Engineer, ANZSCO 261313, Skill level 1.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because were not satisfied the applicant was able to meet the English language competency requirements of 186.222. That is, they had not provided evidence that they met the standard of ‘competent’ prior to application.

6. The applicant appeared before the Tribunal, via Teams video on 26 August 2024 to give evidence and present arguments. THE Tribunal also heard from Ms D Noller on behalf of the approved nominating organisation.

7. The applicant was not represented at the hearing.

8. The Tribunal hearing was not conducted with the assistance of an interpreter as per the Invitation to a Hearing response, 8 August 2024.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the requirements of 186.222 are satisfied. That is that at the time of application the applicant had competent English as defined by the relevant Legislative Instrument and Regulations.

11. The Tribunal has read and carefully considered all the evidence presented to the Department and the delegate.

12. The Tribunal has read and carefully considered all the evidence presented to it prior to the hearing as set out below.

    • IELTS Test Results, 25 November 2023
    • Cert. of Medium of Teaching and Learning, Sisters of Mary School, 22 October 2023
    • STI College Makati Transcript of Records, 12 October 2004
    • Affadavit of Junilo B Pagobo, 3 January 2019
    • Bachelor of Science in Computer Science, STI College, 28 May 2004
    • Resume Pagobo Resume
    • “Proof of Language Skills” – Linkedin Recommendations

    English language proficiency

13. 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 LIN 19/216 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.

14. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 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.

15. The Tribunal has determined with the assistance of Departmental records, that at the time of application, the visa applicant was not in a specified class of exempt applicants according to the relevant legislative instrument.

16. The Tribunal has determined that at the time of application, according to the relevant Departmental records, the visa applicant did not hold a specified Passport according to the relevant legislative instrument exempting them from meeting the required level of competent English. The applicant confirmed at the hearing that he possesses only 1 Passport, that is for the Philippines.

17. The applicant had not undertaken a relevant English Language proficiency test within 3 years prior to application. He did however undertake the IELTS test immediately after receiving the delegates decision on 21 November 2023. It is noted he passed the test at the required level to be classed as competent. The legislation requires this must be undertaken prior to application. When asked the applicant stated that he had also satisfactorily sat an IELTS test in 2008. This can not be applied in this case as it is outside the 3 year window immediately prior to application on 17 May 2023.

18. As per the instrument: Migration (LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas) Instrument 2019 introduced on 16 November 2019, there are no English language exemptions available for 186 Temporary Residence Transition (TRT) visa applications lodged on or after 16 November 2019. As is the case of this application.

19. The documents provided in support of English proficiency do not satisfy 1.15C(1)(a), as set out in IMMI15/005.

20. Based on the available information before the Tribunal, the applicant does not meet 1.15C (1). Consequently, they do not meet 186.222(a).

21. Regulation 1.15C(2) states that 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, contained in IMMI15/005 (5)(F) 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. The applicant does not hold a passport issued by any of these countries. He holds a Passport issued by the Philippines and does not hold a passport from any other country. Therefore, 1.15C(2) is not satisfied.

22. Since neither 1.15C(1) nor 1.15C(2) are satisfied, 1.15C is not satisfied. As 1.15C is not satisfied, the Tribunal finds the applicant did not have competent English at the time of lodging the visa application, and therefore does not satisfy 186.222(a).

23. Subclause 186.222 requires that an applicant must meet competent English; or be a class of person specified in an instrument in writing. The relevant instrument is LIN 19/216: Exemptions from Skill, Age and English Language Requirements for Subclass 186, 187 and 494 Visas (LIN 19/216). According to Instrument LIN 19/216 there is no class of specified person for the purpose of 186.222(b). As there is no class of person specified under Instrument LIN 19/216 for the purpose of 186.222(b) the applicant is not a class of persons specified in an Instrument in writing. The applicant therefore does not meet 186.222(b). Since the applicant does not meet 186.222(a), or 186.222(b) the Tribunal finds the applicant does not meet 186.222.

24. The Tribunal has substantial sympathy for the plight of the applicants as it is clear the applicant was competent in the English language prior to application but he and his employer did not understand the intricacies of the application process fully, the Tribunal notes the relevant changes to the legislation in November 2019. The Tribunal has no discretion in this matter. This was explained in detail to both the applicant and the employer during the hearing.

25. It is self-evident that this was an administrative mistake made by individuals not fully conversant with the immigration law at the time. The unfortunate effect is that a highly desirable and very skilled individual will be denied to the Australian economy. The impact this will have upon the family as well as the business is not lost on the Tribunal. The Tribunal has suggested that the applicant promptly seek advice from an immigration specialist and investigate possible future courses of action.

26. Therefore, cl 186.222 is not met.

27. 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.

    Secondary applicants

28. The Tribunal has determined that the secondary applicants are therefore not members of a family unit of a primary applicant who holds a Subclass 186 visa, granted on the basis of satisfying the primary criteria for a Subclass 186 visa.

29. The secondary applicants therefore do not meet cl.186.311.

    DECISION

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

    Peter Emmerton

    Member

    ATTACHMENT A

    186.223(1)     The position to which the application relates is the position:

    .

    (2)     The Minister has approved the nomination.

    (3)     The nomination has not subsequently been withdrawn.

    (3A)    Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)     The position is still available to the applicant.

    (5)     The application for the visa is made no more than 6 months after the Minister approved the nomination.