Wang (Migration)

[2024] AATA 2098

Wang (Migration) [2024] AATA 2098 (11 June 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yang Wang

REPRESENTATIVE:  Mr Jiang Liu

CASE NUMBER:  2302884

HOME AFFAIRS REFERENCE(S):  BCC2021/2197998

MEMBER:Ian Berry

DATE:11 June 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 11 June 2024 at 11:09am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 – Temporary Residence Transition stream – Customer Service Manager – applicant did not provide evidence of his having completed an English test and a level of competent English – applicant did not possess a passport which provided him with an exemption to provide a competent English test result – decision under review affirmed   

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, 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 27 February 2023 to refuse to grant the applicant an Employer Nomination (Permanent) (Class EN) visa under s 65 of the Migration Act 1958 (Cth) (Act).

2. The applicant applied for the visa on 17 November 2021. 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) (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 applicant is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of Customer Service Manager.

5. The delegate refused to grant the visa because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not provide evidence of his having completed an English test and a level of competent English.

6. The applicant appeared before the Tribunal on 31 January 2024 to give evidence and present arguments. The Tribunal only received oral evidence from the applicant.  The hearing was conducted through Teams telephone conference and The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has achieved competent English and presented such evidence with his visa application.

   English language proficiency

9. 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.

10. ‘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.

    In this instance, having regard to the date of visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

11. The applicant did not possess a passport which provided him with an exemption to provide a competent English test result.

12. Therefore, cl 186.222 is not met.

13. 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

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

    Ian Berry
    Member

    ATTACHMENT A

    186.223(1)      The position to which the application relates is the position:

    .

    (2)      The Minister has approved the nomination.

    (3)      The nomination has not subsequently been withdrawn.

    (3A)     Either:

    (a)there is no adverse information known to Immigration about the person who made the nomination or a person associated with that person; or

    (b)it is reasonable to disregard any adverse information known to Immigration about the person who made the nomination or a person associated with that person.

    (4)      The position is still available to the applicant.

    (5)      The application for the visa is made no more than 6 months after the Minister approved the nomination.