Tekeli (Migration)

[2022] AATA 4031

Tekeli (Migration) [2022] AATA 4031 (15 November 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Okay Tekeli
Ms Meryem Tekeli
Mr Batuhan Tekeli

REPRESENTATIVE:  Mr Dimitrios Katsaros (MARN: 1462286)

CASE NUMBER:  1930298

HOME AFFAIRS REFERENCE(S):          BCC2019/4526356

MEMBER:Namoi Dougall

DATE:15 November 2022

PLACE OF DECISION:  Sydney

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

Statement made on 15 November 2022 at 10:56am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – supply distribution manager – English language proficiency – no specified test taken in 36 months before application made – no exemption based on proposed salary – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, 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 10 October 2019 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 10 September 2019. 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 Supply and Distribution Manager.

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had competent English.

6. On 23 September 2022, the Tribunal invited the applicants to appear before the Tribunal to give evidence and present arguments.

7. On 14 November 2022, the applicant requested that the hearing be postponed. As no reasons were provided in the written request, a Tribunal officer contacted the applicant’s representative who informed the Tribunal officer that the applicant had told  him medical reasons but had not provided any evidence which is why the representative did not include a reason in the request for a postponement.

8. Subsequently, on 14 November 2022, the Tribunal wrote to the applicant advising that the Tribunal would not be postponing the hearing without a medical certificate explaining why the applicant cannot attend the hearing. No response was received from the applicant to the Tribunal’s email.

9. On 15 November 2022, the applicant did not attend the hearing. A Tribunal officer contacted the applicant’s representative and was advised that the representative has not been able to contact the applicant by phone, so he emailed the applicant regarding the necessity of providing a medical certificate in order to have the hearing postponed but received no response. The representative believes the applicant will not attend the hearing. The Tribunal has considered the circumstances of the review including that but without full details as to why the hearing should be postponed that Tribunal has decided not to postpone the hearing.  In deciding not to postpone the hearing, the Tribunal also took into account, that there is no information or evidence on the file that indicates that the applicant can meet the requirements of reg.186.222 which the applicant would be aware of as it was the issue in question dealt with in the delegate’s decision. Further, the delegate’s decision was made 3 years ago and the applicant has had plenty of time to provide further information and evidence.

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

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is is whether the English language proficiency criteria is met as set out in cl 186.222.

English language proficiency

1. 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 18/045: 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.

2. ‘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.

3. The applicant in this case stated in the visa application that he had not undertaken an English test in the last 36 months and had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument. The applicant holds a German passport which is not a specified passport, so there is no evidence that he met the requirements of ‘competent English’ and the Tribunal finds accordingly.

4. The applicant also stated in the visa application that he had not completed, or is currently enrolled in, any studies at secondary level. Therefore, the applicant is not claiming to be in nor is there any evidence that he is in a specified class of exempt applicants, specifically a person who has completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English. Therefore, the Tribunal is not satisfied that the applicant has competent English.

5. Provided to the Department with the visa application was a submission from the applicant’s representative which submitted that the applicant is exempt from meeting the English language requirements as his sponsor had offered him a salary of $185,000 and the applicant is a holder of a Subclass 457 on 18 April 2017. There is no exemption from the English Language requirements based on the applicant’s proposed salary.

6. Therefore, cl 186.222 is not met.

7. 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.

8. The Tribunal must also affirm the decision not to grant the secondary applicants’ subclass 186 visas as it finds that they do not meet the secondary visa criteria requiring them to be a member of the family unit of a person who holds a subclass 186 visa, and there is no evidence that they met the primary visa criteria in their own right.

DECISION

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

Namoi Dougall
Member