Salazar Macedo (Migration)

[2023] AATA 3465

Salazar Macedo (Migration) [2023] AATA 3465 (6 October 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gabriel Juan Salazar Macedo
Miss Valeria Ines Salazar Oscategui
Mrs Ines Victoria Oscategui Rodriguez

REPRESENTATIVE:  Mr Adam Khaze (MARN: 0960138)

CASE NUMBER:  2110963

HOME AFFAIRS REFERENCE(S):          BCC2020/1891812

MEMBER:Karen McNamara

DATE:6 October 2023

PLACE OF DECISION:  Sydney

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

Statement made on 06 October 2023 at 5:18pm

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – program or project administrator – English language proficiency – competent English – no evidence provided that specified language test undertaken – COVID pandemic and wife’s health – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2), 359C(1), 360(3), 363(1)(b), 363A
Migration Regulations 1994 (Cth), r 1.15C(1)(c), Schedule 2, cls 186.222(a), 186.311

CASES
Hasran v MIAC [2010] FCAFC 40
Huo v MIMA [2002] FCA 617
Kaur v MIBP [2014] FCA 915
Manna v MIAC [2012] FMCA 28
MIAC v Li [2013] HCA 18
MIBP v Singh [2014] FCAFC 1

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 August 2021, 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 13 July 2020. 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 Mr Gabriel Juan Salazar Macedo (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated occupation of Program or Project Administrator (ANZSCO 511112).

5. The applicants applied to the Tribunal on 21 August 2021, for review of the delegate’s decision. The review application was accompanied by a copy of the delegate’s decision. The Tribunal also has before it the Department file containing all information before the delegate at the time of their decision.

6. The decision record provided to the Tribunal by the applicant, records that on 4 August 2021, the delegate refused to grant the visas, because Mr Gabriel Juan Salazar Macedo did not meet cl.186.222 of Schedule 2 to the Regulations. The delegate found that the applicant did not provide evidence of having competent English at the time of application nor was he a person in a class of persons specified in the relevant instrument.

7. The delegate also found that the second named applicant, Miss Valeria Ines Salazar Oscategui and third named applicant Mrs Ines Victoria Oscategui Rodriguez could not be granted a Subclass 186 visa, as they did not meet the secondary visa criterion (cl.186.311), requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 186 visa.

8. On 7 August 2023, the Tribunal wrote to the applicants pursuant to s.359(2) of the Migration Act 1958 (the Act) (dispatched by email to the authorised recipient), inviting the applicants to provide evidence to support at the time of application (13 July 2020) Mr Macedo had competent English; or was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

9. The invitation was sent to the applicants’ authorised recipient/representative via the last email address provided in connection with the review and advised that, if the information was not provided in writing by 21 August 2023, the Tribunal may make a decision on the review without taking further steps to obtain the information and the review applicants would lose any entitlement they might otherwise have had under the Act, to appear before the Tribunal to give evidence and present arguments.

10. As at the time of this decision, the Tribunal has received no response from the applicants or an authorised representative of the applicants, to the Tribunal’s letter of 7 August 2023, nor have the applicants provided the information within the prescribed period and no extensions have been requested or granted.

11. Where an applicant is invited to provide further information in accordance with subsection 359(2) of the Act and fails to do so within the prescribed period, the Tribunal may make a decision on the review without taking any further action to obtain the information (subsection 359C(1) of the Act) and pursuant to s.360(3) of the Act, the review applicant is not entitled to appear before the Tribunal. The effect of s.363A of the Act is that if a review applicant has no entitlement to a hearing, the Tribunal has no power to permit him or her to appear: Hasran v MIAC [2010] FCAFC 40.

12. Accordingly, as the applicants failed to provide the information requested within the prescribed period, the applicants have lost the right to appear before the Tribunal to give evidence and present arguments relating to the review application.

13. Although the applicants have not requested this, the Tribunal has also considered whether it would be appropriate to adjourn the application for review under s.363(1)(b) of the Act to allow the applicants additional time in which to provide evidence to support their application for review.

14. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28, where the Courts held that the Tribunal is not required to indefinitely defer its decision-making process. It has also had regard to the decision in Minister for Immigration and Citizenship v Li [2013] HCA 18 regarding the reasonableness of any request for an adjournment, and the Full Federal Court decision in Minister forImmigration and Border Protection v Singh [2014] FCAFC 1 which considered this issue, as well as the decision in Kaur v Minister for Immigration and Border Protection [2014] FCA 915 where analogous issues were discussed.

15. The Tribunal considered whether, in the circumstances of this case, the information that the first named applicant meets the relevant requirements under cl.186.222 of Schedule 2 to the Regulations, is likely to be forthcoming and whether the applicants have had a fair opportunity to provide the relevant information or documents already, and the significance of the information or documents to the applicants.

16. The Tribunal is satisfied that the invitation to provide information was sent to the correct email address. The invitation was not returned to sender as undeliverable mail. To date, the requested information has not been provided and the applicants have not made contact with the Tribunal to indicate that the information is forthcoming.

17. The Tribunal has had regard to the fact that the application was refused by the Department on 4 August 2021. The applicants submitted a copy of the primary decision record with the review application. As a result, the Tribunal observes that the applicants have been aware for over two years of the reasons for the nomination refusal.  Since lodging the review application, the applicants have not engaged with the Tribunal to provide information in support of their review application and there has been no request for an extension of time within which to respond to the Tribunal’s request for information, or reasons provided for lack of response. 

18. The Tribunal has also taken into account the fact that the implications of not providing the information requested in the Tribunal’s invitation, were set out in the letter of 7 August 2023.

19. In these circumstances, the Tribunal considers that the applicants have had sufficient time in which to address issues arising in the application for review. Accordingly, the Tribunal has decided not to exercise its discretion under s.359C(1) to take further steps to obtain information from the applicant, or to exercise its discretion under s.363(1)(b) to adjourn the review any further to allow the applicants more time in which to demonstrate that the first named applicant meets the requirements in cl.186.222 of Schedule 2 to the Regulations.

20. In the circumstances, the Tribunal has decided to proceed to make its decision on the available evidence.

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

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

23. The issue in the present case is whether Mr Gabriel Juan Salazar Macedo had competent English at the time of application: cl.186.222 (a) or was a person in a class of persons specified by the Minister in an instrument for cl.186.222 (b) of Schedule 2 to the Regulations.

    English language proficiency

24. 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 a legislative instrument (LIN 19/216) [1]. 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.

    [1] For visa applications made on or after 16 November 2019, the exemption for subclass 186 applications on English language requirements was repealed. There are no exemptions specified for cl186.222(b) or cl186.232(b).

25. ‘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.

26. In this instance, having regard to the date of the 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. For paragraph 1.15C(1)(c) of the Regulations, the following test scores are specified:

    i. an IELTS test score of at least 6 in each of the four test components of speaking, reading, writing and listening; or

    ii. an OET test score of at least B in each of the four test components of speaking, reading, writing and listening; or

    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or

    iv. a PTE Academic test score of at least 50 in each of the four test components of speaking, reading, writing and listening.

    v.a Cambridge English: Advanced (CAE) test score of at least 169 on each of the four test components of listening, reading, writing and speaking.

27. For r.1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

28. The Tribunal is satisfied that the applicant holds a passport issued by the Republic of Peru. He therefore does not hold a passport specified in IMMI 15/005, and thus must demonstrate that he has obtained the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 13 July 2020).

29. The primary decision record notes that in response to the Department’s request for further information of 12 May 2021, on 8 June 2021 the representative on behalf of the applicants, provided evidence to support that the applicant had booked an IELTS test for 10 July 2021 and 21 August 2021.  

30. On 23 June 2021, the Department sent a subsequent request for information clarifying the English language requirement under cl.186.222 specifically noting ‘Information you have provided to the Department on 9 July 2021, indicates that you have booked for an IELTS examination on 10 July 2021. Please note that these results will not be able to be accepted for this visa application, as the test date is after you lodged your visa application.

    If you do not have a suitable English test result your visa application cannot be approved.’

31. On 21 July 2021, the representative advised as follows; ‘We are writing regard the below applicant. We have received a Request for further Information regarding client’s English test. By the time we have applied his visa, on 13th July 2021 the whole country were in lockdown from March until July, in this period client could not get his English test completed, at the other hand, Gabriel also has compelling reasons of not yet being able to provide it, he has been looking after his sick wife with a terrible Cancer (Leukemia) and has been on and off hospital for the past year, if any exams and proofs are needed we can provide them.[2]’

    [2] Prepared and transcribed as per documented on primary decision record

32. Whilst the Tribunal acknowledges that the COVID pandemic presented challenges, however in terms of the criteria of cl.186.222, the criteria expressly requires that the applicant had the requisite level of English proficiency at the time of application. The Tribunal has no discretion to waive the requirements of cl.186.222.

33. Having considered the evidence before it, the Tribunal finds that at the time Mr Macedo lodged his application with the Department on 13 July 2020, he had not undertaken a language test as specified by the Minister in the 3 years immediately before the day on which the application was made.

34. As the applicant has not provided evidence that he has satisfied any language test requirements by undertaking a specified English language test and achieved the specified score in a specified test in the three years immediately before the day on which the application was made; and given the applicant holds a passport issued by the Republic of Peru (which is not of a type specified by the Minister), the applicant does not meet the requirements of r.1.15C. Therefore, the Tribunal must find that the applicant does not have competent English as defined in r.1.15C and as such the applicant does not meet cl.186.222(a).

35. Clause 186.222(b) requires that the applicant be a class of person specified in the relevant instrument. The relevant instrument under cl.186.222(b) at the time this application was lodged is LIN 19/216.

36. The Tribunal has reviewed the exemption categories listed in LIN 19/216 and is satisfied that there are none listed for the purposes of cl.186.222(b).

37. The Tribunal therefore cannot be satisfied that the applicant meets the requirements of cl.186.222(b).

38. As the criteria in cl.186.222(a) and cl.186.222(b) are not met, accordingly the requirements in cl.186.222 are not met.

39. As the first named applicant is found not to have met the prescribed criteria for a subclass 186 visa, the second named applicant, Miss Valeria Ines Salazar Oscategui and third named applicant Mrs Ines Victoria Oscategui Rodriguez, as members of Mr Gabriel Juan Salazar Macedo’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named and third named applicants do not satisfy cl.186.311.

40. 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.

    DECISION

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

    Karen McNamara
    Member