Thongin (Migration)

[2017] AATA 2472

Thongin (Migration) [2017] AATA 2472 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Sarintip Thongin

CASE NUMBER:  1702096

DIBP REFERENCE(S):  BCC2016/2475084

MEMBER:Alison Mercer

DATE:23 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 23 August 2017 at 3:04pm

CATCHWORDS

Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Café or Restaurant Manager – Requirement to have vocational English – Applicant did not appear at hearing – No evidence of fulfilling requirement to have vocational English

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 Immigration on 17 January 2017 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 26 July 2016. 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 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, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which required that, at the time she made her visa application, the applicant had vocational English or was in a class of persons specified by the Minister. The delegate was satisfied that the applicant did not fall within any of the classes of specified persons set out in the relevant written instrument for these purposes, IMMI 15/083. The delegate found that the applicant therefore had to show that she had vocational English, as defined in r.1.15B of the Regulations. This definition in turn required that the applicant either held a specified passport or had undertaken a specified English test and obtained the specified scores in the 3 year period immediately before she made her application. The delegate found that the applicant did not hold a specified passport and had provided no evidence of having undertaken a specified English test in the relevant period prior to making her visa application.

6. The Tribunal received a review application from the applicant on 7 February 2017, which was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Antony Wallace, as her representative and authorised recipient for correspondence.

7. On 7 August 2017, the Tribunal wrote to the applicant via her agent to invite her to attend a hearing on 23 August 2017. She was asked to indicate within 7 days whether she would attend the hearing, and to provide any documents she intended to rely upon to establish that she met the criterion in dispute.  The Tribunal also advised that if the applicant did not attend the hearing, the Tribunal might proceed to make its decision on the available evidence without scheduling another hearing, or might dismiss the review application.

8. On 15 August 2017, the applicant’s agent forwarded a hearing response indicating that the applicant would attend the hearing but that the agent would not be attending.

9. On the morning of the hearing on 23 August 2017, the applicant’s agent rang the Tribunal to advise that the applicant would not in fact attend the hearing and that the Tribunal should proceed to make its decision on the available evidence.

10. The applicant did not appear at the hearing before the Tribunal on 23 August 2017 at 9.30am.

11. The Tribunal is satisfied that its hearing invitation letter was sent to the correct email address for the applicant’s nominated recipient for correspondence, Mr Wallace.  There is no evidence that the email was not received or was otherwise undeliverable. 

12. Under the circumstances – where the applicant has been notified of the hearing date via her agent, but has not sought to attend or to have the hearing date rescheduled, and where the criterion in dispute is simple - the Tribunal has elected to proceed to a decision without taking further steps to offer another hearing to the applicant.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

14. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have vocational English (cl.186.222(a)), or be in a class of persons specified in legislative instrument IMMI 15/083 (cl.186.222(b)).

15. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will have vocational English 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.

16. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

17. In summary, IMMI 15/083 specifies the following classes for the purposes of cl.186.222(b):

    ·persons whose earnings will be at least equivalent to the current Australian Tax Office’s top individual tax rate (at the time of the visa application, this was $180,001); and

    ·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.

18. The Tribunal is satisfied from its review of the information provided by the applicant to the Department that she does not fall within either of the above classes of specified persons. There is no evidence to indicate that her earnings would be at least $180,001. Although the applicant indicated that she undertook a Diploma of Hairdressing (Salon Management) in Australia which was presumably taught in English, this ran from 1 November 2008 to 10 January 2011, a period of approximately 2 years and 2.5 months. She also listed 2 General English courses that she undertook in Australia between 1 July 2008 and 15 October 2008 (3.5 months) and 15 March 2008 to 15 May 2008 (2 months). Assuming these courses to all have been full time and taught in English, the total period for all the Australian courses is approximately 2 years and 8 months. The applicant also indicated that she undertook a Bachelor of Business Administration in Thailand between 1 June 2002 and 6 March 2005, but has not provided any information to establish that this course was a full time one or that it was taught in English. The Tribunal therefore finds that the applicant does not satisfy cl.186.222(b).

19. IMMI 15/005 specifies that, for visa applications lodged on or after 1 January 2015, the specified passports for the purposes of cl.186.222(a) are those issued by the United Kingdom, the United States of America, Canada, New Zealand and Republic of Ireland. The Tribunal finds that the applicant holds a passport issued by Thailand and thus does not hold a specified passport.

20. IMMI 15/005 further specifies that for the purposes of r.1.15B, the English tests that are acceptable are: the International English Language Testing System (IELTS) test, the Occupational English Test (OET), the TOEFL iBT test, the PTE Academic test and the Cambridge English (Advanced CAE) test. No evidence was provided to the Department by the applicant to demonstrate that she had undertaken one of the above tests in the 3 years at the time that she made her visa application on 26 July 2016 (let alone one in which she had obtained the specified scores). Nor did the applicant provide any evidence to the Tribunal to indicate that she had done so. As this is a time of application criterion, it cannot be met by a test undertaken after the applicant made her subclass 186 visa application. Accordingly, the Tribunal finds that the applicant does not satisfy cl.186.222(a).

21. As the applicant does not meet either of the subparagraphs of cl.186.222, the Tribunal finds that cl.186.222 is not met.

22. 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

23. The Tribunal affirms the decision not to grant the applicant an Employer Nomination (Permanent) (Class EN) visa.

    Alison Mercer
    Member