Stevens (Migration)

[2022] AATA 2575

Stevens (Migration) [2022] AATA 2575 (7 April 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Elric Luc Stevens

CASE NUMBER:  2101080

HOME AFFAIRS REFERENCE(S):          BCC2020/1535829

MEMBER:Sheridan Lee

DATE AND TIME OF

ORAL DECISION AND REASONS:        7 April 2022 at 12:50 pm (VIC time)

DATE OF WRITTEN RECORD:                28 April 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review

Statement made on 28 April 2022 at 9:12am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Stream) – temporary residence transition stream – baker – competent English language proficiency – specified tests taken more than 3 years before application made and after application made – decision under review affirmed

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

APPLICATION FOR REVIEW

1.    This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 29 January 2021 to refuse to grant the visa applicant an Employer Nomination (Permanent) Subclass 186 visa under the Migration Act 1958 (Cth) (the Act).

2.    At the hearing on 7 April 2022 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

3. On 12 May 2020, Mr Stevens applied to the Department of Home Affairs for an employer nomination permanent class EN visa. The criteria for the grant of a subclass 186 visa are set out in part 186 of schedule 2 to the Migration Regulations 1994.

4.    In the present case, you are seeking the visa in the temporary residence transition stream to work in the position of baker. At the time your visa application was made in the temporary residence transition stream, you had to have either a defined level of English language proficiency or be in a class of persons specified in the relevant legislative instrument.

5.    For visa applications made on or after 1 July 2017, the level required is competent English. Competent English is defined in regulation 1.15(c) and a person would meet the definition if they undertook a language test in the three years preceding the visa application and achieved a specified score or hold a specified passport. I outlined the countries that are specified for the purposes of the passport exemption, and as discussed, the applicant does not hold one of those passports, he holds a passport from France.

6.    For visa applications made on or after 16 November 2019, there is no exemptions specified by the Minister for the purposes of clause 186.222(b) or 186.232(b). As such, the applicant was required to have undertaken a language test in the three years preceding the visa application and achieved a specified score.

7.    The delegate’s decision, which was provided to the tribunal on review, outlines that you undertook an IELTS on 20 February 2016, which was more than three years immediately before you lodged the visa application on 12 May 2020. Your next IELTS English test was undertaken on 1 August 2020, which was after the visa application was lodged. As such, there was no English test undertaken within the three years preceding the visa application.

8.    On 27 March 2021, I acknowledge that you supplied the tribunal with a number of documents. Having reviewed the documents I note that none of them addressed the issue before me, that is there is no evidence to suggest that you undertook an English language test in the three years prior to the lodgement of your visa application. This is the only method by which you can meet the requirement of clause 186.222.

9.    I accept that the outcome will have a significant impact on you and your partner and family. I remind you that the decision is limited to the issue before me, and as such my decision does not indicate whether you would be eligible for a different visa.

1. I find today that you do not meet the requirements of clause 186.222. I affirm the decision not to grant you an employer nomination permanent class EN visa.

DECISION

1. The Tribunal affirms the decision under review.