Wang (Migration)

[2017] AATA 2496

Wang (Migration) [2017] AATA 2496 (24 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Qing Wang
Mr Decai Yang
Ms Qingyue Yang

CASE NUMBER:  1702976

DIBP REFERENCE(S):  BCC2016/1411313

MEMBER:Hugh Sanderson

DATE:24 November 2017

PLACE OF DECISION:  Sydney

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

Statement made on 24 November 2017 at 12:53pm

CATCHWORDS
Migration – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – Temporary Residence Transition stream – Nominated position – Program or Project Administrator – English language proficiency – Failed to meet the language requirements 

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 1 February 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 to the Department of Immigration for the visas on 10 April 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 first named applicant (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Program or Project Administrator. 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 visas because the applicant did not meet cl.186.222 of Schedule 2 to the Regulations because she did not meet the English language requirements.

   Background

6. The applicant is a citizen of China. The second named applicants are her husband and child. The only claims they have made are that they are members of the family unit of the applicant.

7. When the application was lodged, the applicant did not provide any evidence of having undertaken and English language test to meet the vocational English requirements in cl.186.222. The applicant provided an International English Language Test System (IELTS) result form dated 9 November 2016 indicating she had scored as follows:

   Listening – 4.5;

   Reading – 4.5;

   Writing – 5.0;

   Speaking – 6.0; and

   Overall band score – 5.0

8. The delegate noted that in order to successfully meet the vocational English requirements in reg.1.15B and IMMI 15/005 using the IELTS system the applicant was required to achieve a test score of at least five in each of the four components of listening, reading, writing and speaking. As the application was lodged on 10 April 2016 the applicant had failed to satisfy the requirements of the language test conducted in the three years immediately before the day on which the application was made. The delegate noted the applicant did not meet the alternative criteria to satisfy cl.186.222 and therefore refused the application.

9. As the applicant did not meet the criteria for the grant of the visa, the applications of the second named visa applicants were also refused as they were not members of the family unit of a person who met the primary criteria.

   Information to the Tribunal

10. The applicant provided a statement to the Tribunal in support of the application. She claimed that she had sat for ten IELTS exams between 26 September 2015 and 7 January 2017. In none of these did she achieve a test score of at least five in each of the four test components of listening, reading, writing and speaking. The applicant claimed, however, her English was improving and hoped the Tribunal could reconsider her application. A letter from her employer, Mr Xu claimed her English was considered good enough for her daily tasks.

11. The Tribunal wrote to the applicant on 26 October 2017 inviting her to attend a hearing to be conducted on 24 November 2017. The applicant requested a postponement of the hearing on the grounds that she had already booked a flight to return to China on 10 November 2017 and requested the hearing to be conducted after 24 December 2017. The Tribunal declined the postponement request and advised the applicant that she could attend the hearing by telephone. She claimed that she would need an interpreter and it was confirmed that a Mandarin interpreter would be provided for her at the hearing.

12. The applicant appeared before the Tribunal on 24 November 2017 to give evidence and present arguments by telephone. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

13. The Tribunal noted that the criteria on which the Department refused the application was a time of application criteria. The applicant acknowledged that she had not been able to obtain the required score in her English language tests, but she had been working on her English and it was improving.

14. The applicant made a number of submissions as to why she should be granted the visa. This included the following:

    ·She was still working on her English and it was improving;

    ·She has a nine-year-old child who is used to living in Australia and would not be able to speak Chinese if he were to return there;

    ·The applicant’s husband is an expert electrician and worker with water and would be able to make a great contribution to Australian society;

    ·The applicant has been working in marketing in Australia for many years and would like to contribute to the exchange of ideas between Australia and China; and

    ·Her family enjoys living in Australia and it is a fair country.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

16. The issue in the present case is whether the applicant meets the English language requirements.

    English language proficiency

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

18. ‘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.

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

19. The applicant has provided to the Tribunal details of a series of IELTS tests she has undertaken while in Australia. Five of these were undertaken before the application was lodged. In none of these was she able to achieve a score of at least five in each of the four components of listening, reading, writing and speaking.

20. The applicant has provided details of a further five IELTS tests she has taken since filing the application. Although not relevant to the current application, which requires the test to have been conducted in the three years immediately before the day on which the application was made, she has still not been able to achieve a score of at least five in each of the four components.

21. The applicant does not hold a passport of the type specified by the Minister. As her earnings will be $55,000, this is less than the current Australian tax office top individual income tax rate. No information has been provided which would indicate the applicant would be exempt from the requirements to establish she has vocational English.

22. The Tribunal has considered the submissions made by the applicant, however, they are irrelevant when considering whether the applicant meets the criteria for the grant of the visa.

23. Therefore, cl.186.222 is not met.

24. 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. As the applicant does not meet the primary criteria for the grant of the visa, the second named applicants do not meet the criteria of being a member of the family unit who meets the primary criteria and the decision to refuse their applications must also be affirmed.

    DECISION

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

    Hugh Sanderson
    Member