Tran (Migration)

[2018] AATA 3918

Tran (Migration) [2018] AATA 3918 (3 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Xuan Hai Tran
Mr Vu Khanh Nguyen
Mr Tran Nguyen Vu Nguyen
Mr Tran Nguyen Khoi Nguyen

CASE NUMBER:  1725955

HOME AFFAIRS REFERENCE(S):           BCC2017/798819

MEMBER:Alison Mercer

DATE:3 September 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 03 September 2018 at 12:31pm

CATCHWORDS

MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – Temporary Residence Transition stream – position of Café or Restaurant Manager – vocational English – English tests undertaken in the 3 years before the application – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2 cl 186.222, r 1.15

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 and Border Protection on 5 October 2017 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 February 2017. 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 Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Café or Restaurant Manager.

5. The delegate refused to grant the visas because he found that the applicant did not meet cl.186.222 of Schedule 2 to the Regulations, which required that, at the time of the visa application, the applicant had demonstrated the required English proficiency in the specified way, or alternately, that she was exempt from having to do so. The delegate acknowledged that the applicant had undertaken an International English Language Testing System (IELTS) test on 7 January 2017 but found that she had not obtained the specified scores for ‘vocational English’ as set out in r.1.15B and its associated written instrument, IMMI 15/005. The delegate noted that the applicant’s agent claimed that the applicant was exempt from having to demonstrate vocational English as she would be paid $180,000 per year, but did not accept this as the applicant’s employment contract listed her annual salary as $65,000. The delegate found that the applicant did not fall within any of the other categories which would exempt her from having to demonstrate that, at the time of the visa application, she had vocational English.

6. The delegate also refused to grant the second, third and fourth named applicants (the applicant’s children) subclass 186 visas as the delegate found that they did not meet the secondary visa criteria to be members of the family unit of a person who held a subclass 186 visa, and there was no evidence to indicate that they met the primary visa criteria in their own right.

7. The Tribunal received a review application from the applicants on 24 October 2017.  It was accompanied by a copy of the delegate’s decision and an authority by which the applicants appointed a registered migration agent, Mr David Hadley, as their representative and authorised recipient for correspondence.

8. On 27 June 2018, the Tribunal wrote to the applicants via their agent to invite them to attend a telephone hearing on 18 July 2018. They were also asked to provide any evidence in support of their case before the hearing.

9. On 9 July 2018, the Tribunal received a hearing response and a short submission from the applicants’ agent, in which he made the following points:

   ·since the Department refusal decision, the applicant had undertaken another IELTS test and obtained an overall band score of 5, which met the vocational English requirements; and

   ·therefore, the applicant requested that the matter be remitted on the papers as she now satisfied the English language criteria for the subclass 186 visa.

10. The applicants’ agent provided a copy of the applicant’s verified IELTS test results for a test she undertook on 24 March 2018, in which she obtained scores of 6.5 for listening, 6.5 for reading, 5.0 for writing and 5.5 for speaking, with an overall band score of 6.0.

11. The applicant participated in a telephone hearing with the Tribunal on 18 July 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

12. The applicant confirmed her migration history to the Tribunal, stating that she had been managing a café for her present Australian employer for some years as the holder of a subclass 457 visa. The employer was happy with her and had therefore nominated her for permanent residence in the Temporary Residence Transition stream of the subclass 186 visa. The applicant said that she understood that she had to meet the required English level for the subclass 186 visa, and that she had been working very hard to improve her English proficiency, despite it being difficult for her due to her age and the fact that she was working full time. The Tribunal discussed with the applicant its view that cl.186.222, r.1.15B and the relevant written instrument confined it to considering only specified English tests undertaken by her in the 3 years immediately before she made her subclass 186 visa application. The Tribunal indicated that, therefore, it could not take into account the applicant’s IELTS test of 24 March 2018, as it was undertaken after she made her subclass 186 visa application. The applicant said that her agent did not tell her that only tests undertaken before the date of the visa application could be taken into account; he encouraged her to keep taking tests until she obtained the required scores.

13. The applicant asked the Tribunal to take into account her sustained efforts to meet the required English proficiency requirements. She told the Tribunal that she had sat 15 tests to date, and had missed obtaining the required score in a single component in each of them, which was very frustrating. The applicant said that she returned to Vietnam in January to February 2018 as her father was very ill, yet she still studied hard for her upcoming English test while there. She undertook 3 tests while there, despite the difficult family circumstances, because she knew that she could not waste the opportunity to work towards her ultimate goal of obtaining Australian permanent residence.

14. The applicant clarified with the Tribunal that she had not undertaken any other study in Australia besides studying for the IELTS tests, and that her current salary was $65,000. The applicant told the Tribunal that she was unaware that she could not rely on an English test undertaken after she made her visa application, and was very sad and disappointed to learn this, as her agent had not informed her of this. She told the Tribunal that her children had been at school in Australia for 5 years now and they were very proud of her efforts and hard work in her job and with her English.  She said that she did not know how to tell them that she had been rejected for permanent residence.

15. The Tribunal confirmed that it would look closely at the circumstances of her case before making its decision.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

17. The issue in the present case is whether the applicant meets cl.186.222.

    English language proficiency

18. 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 15/083: 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.

19. ‘Vocational English’ is defined in r.1.15B and ‘competent English’ is defined in r.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 (28 February 2017), the required level is vocational English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

20. From the documentary evidence before it, the Tribunal is satisfied that the applicant sat an IELTS test on 24 March 2018 in which she obtained scores of 6.5 for listening, 6.5 for reading, 5.0 for writing and 5.5 for speaking (overall band score: 6.0). The Tribunal notes that item 5A of IMMI 15/005 specifies that an IELTS test is an acceptable test for the purposes of r.1.15B ‘vocational English’, and item 5B(i) states that an applicant must obtain a score of at least 5 of each of the 4 test components. The applicant’s IELTS test of 24 March 2018 meets these requirements; however, r.1.15B(1)(ba) requires that any test relied upon to demonstrate ‘vocational English’ must have been conducted in the 3 years immediately before the day on which the visa application was made. Accordingly, the Tribunal is legally unable to take into account the applicant’s IELTS test results for 24 March 2018 in determining whether she meets the combined requirements of r.1.15B, IMMI 15/005 and cl.186.222.

21. The Tribunal notes that the applicant stated that she had undertaken approximately 15 IELTS tests prior to the test she took on 24 March 2018. However, she conceded that she had fallen short in one component of each of those previous tests and therefore had not obtained the required scores in each of the 4 components of any single test she undertook prior to making her subclass 186 visa application on 28 February 2017.  Accordingly, the Tribunal must find that she does not satisfy r.1.15B(1) as a whole.

22. The Tribunal is satisfied that the applicant is the holder of a Vietnamese passport, and she therefore does not come within r.1.15B(2), which specifies that she has vocational English if she holders a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland.

23. Having found that the applicant is unable to demonstrate that she had vocational English at the time she made her visa application, the Tribunal has considered whether she is exempt from having to do so. IMMI 15/083 provides the following categories of exemption for the purposes of cl.186.222(b):

    ·

    ·visa applicants whose earnings will be at least equivalent to the Australian Tax Office’s top individual tax rate [$180,001 at the time that the visa application was made]; 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.

24. At hearing, the applicant confirmed that her salary is $65,000 per year, as per the employment contract provided to the Department. She further confirmed that she had not undertaken 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.

25. Accordingly, the Tribunal must find that the applicant does not meet cl.186.222(b) and is therefore not exempt from having to demonstrate that she had vocational English at the time she made her visa application. As noted above, the Tribunal has found that she did not have vocational English at the time she made her visa application, as required by cl.186.222(a).

26. The Tribunal therefore finds that the applicant does not satisfy cl.186.222 as a whole. The Tribunal acknowledges the persistence of the applicant in studying for, and ultimately achieving, the required IELTS scores, albeit outside the timeframe specified in r.1.15B.  However, the Tribunal has no discretion to waive or overlook the requirement that the applicant meets cl.186.222 in the ways specified in subparagraph (a) or (b) of that clause.

27. The Tribunal finds that the applicant is not entitled to a subclass 186 visa due to her inability to satisfy cl.186.222 in the way prescribed in the Act and Regulations. 

28. 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.

29. The Tribunal must also affirm the decisions to refuse the second, third and fourth named applicants subclass 186 visas as it finds that they cannot meet the secondary visa criteria to be members of the family unit of a person who holds a subclass 186 visa, and there is no evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right.

    DECISION

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

    Alison Mercer
    Member