1410544 (Migration) - [2015] AATA 3010

1410544 (Migration) [2015] AATA 3010 (2 July 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
REVIEW APPLICANT:  FUSION INDIA PTY LTD ATF FUSION INDIA
VISA APPLICANT:  Ravi Mukeshbhai PATEL
CASE NUMBER:  1410544
DIBP REFERENCE(S):  CLF2012/129496
MEMBER:Marten Kennedy
DATE:2 July 2015
PLACE OF DECISION:  Adelaide
DECISION:The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:
·cl.119.211(3)(b)(i) of Schedule 2 to the Regulations; and
·cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations

Statement made on 02 July 2015 at 1:16pm

STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration on 2 June 2014 to refuse to grant the visa applicant a Employer Nomination (Migrant) (Class AN) Subclass 119 visa under s.65 of the Migration Act 1958 (the Act). The visa applicant applied for the visa on 13 June 2012.
The delegate refused to grant the visa on the basis that the visa applicant, Mr Patel, did not satisfy the requirements of cl.119.211(3)(b) of Schedule 2 to the Regulations.
Clause 119.211(3)(b) of Schedule 2 to the Regulations relevantly requires that, at the time of application, unless exceptional circumstances apply, the applicant has not turned 45, has functional English, and has a diploma…or higher qualification that is relevant to the appointment.
I am satisfied that at the time of application the applicant had not turned 45, and find the requirements of cl.119.211(3)(b)(i) are met.
I am not satisfied that at the time of application the applicant had functional English.
In this regard, section 5(2) of the Act provides that a person has functional English at a particular time if he or she passes a test that is approved in writing by the Minister and is conducted by a person or organisation approved by the Minister (s.5(2)(a)(i) and (ii)), or the person provides prescribed evidence of the person’s English language proficiency (s.5(2)(b)).
There are no approved tests, persons or organisations for s.5(2)(a).
For s.5(2)(b), evidence is prescribed by r.5.17. Regulation 5.17 provides, for visa applications made before 1 July 2012, evidence that the person has a qualification or experience, or has attained test results, set out in column 2 of an item in Part 3 of Schedule 6, being a qualification, experience or test results in relation to which 10 points or more is specified in column 3 of that item; or evidence that the person has been awarded 10 or more points under Part 3 of Schedule 6 (including points awarded because of a determination by the Minister under sub-regulation 2.26(4)).
Relevantly to the evidence before me, item 6311 assigns 10 points where an applicant has achieved an IELTS average band score of at least 4.5 in a test conducted not more than 12 months before lodging the relevant application to migrate or at the time of processing the application. The applicant has undertaken…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading 1410544 (Migration)

Details

AGLC: 1410544 (Migration) [2015] AATA 3010
Case: [2015] AATA 3010
Decision Date: 2 July 2015

CaseChat Overview and Summary

In the matter of 1410544 (Migration), the applicant sought a review of the decision by the Department of Immigration and Border Protection to refuse their application for an Employer Nomination (Migrant) (Class AN) visa. The Tribunal, led by Marten Kennedy, was tasked with examining the decision and determining whether the applicant met the criteria for a Subclass 119 visa under the Regional Sponsored Migration Scheme.

The central legal issue before the Tribunal was whether the applicant met the specific criteria outlined in clauses 119.211(3)(b)(i) and 119.211(3)(b)(iii) of Schedule 2 to the Regulations, despite the Department's refusal based on perceived non-compliance with these provisions. Specifically, the Tribunal had to consider whether the applicant's circumstances were exceptional enough to warrant disregarding the requirement of clause 119.211(3)(b)(iii). Additionally, the Tribunal had to assess if the applicant's English proficiency met the necessary functional standards.

The Tribunal found that exceptional circumstances did exist to overlook the requirement of clause 119.211(3)(b)(iii). The Tribunal was satisfied that the applicant's situation justified this exception based on the detailed evidence presented. Furthermore, the Tribunal concluded that the applicant met the requirements of clause 119.211(3)(b)(i) and (iii) under the Regulations. The Tribunal noted that the applicant still needed to demonstrate functional English proficiency as per the applicable Regulations. Consequently, the Tribunal remitted the matter back to the Department for reconsideration with these findings in mind.

In light of these findings, the Tribunal remitted the application for an Employer Nomination (Migrant) (Class AN) visa to the Department for reconsideration, directing that the applicant met the criteria of clauses 119.211(3)(b)(i) and 119.211(3)(b)(iii) of Schedule 2 to the Regulations.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For these reasons, I find that exceptional circumstances apply so as to disregard the requirement of cl.119.211(3)(b)(iii). In light of my findings as to cl.119.211(3)(b)(i) outlined above, it follows that I find that the requirements of cl.119.211(3)(b)(i) and (iii) are met, and will remit the matter to the Department on that basis. As mentioned above, it remains for the applicant to demonstrate functional English in accordance with the applicable Regulations.DECISION The Tribunal remits the application for an Employer Nomination (Migrant) (Class AN) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 119 (Regional Sponsored Migration Scheme) visa:·cl.119.211(3)(b)(i) of Schedule 2 to the Regulations; and·cl.119.211(3)(b)(iii) of Schedule 2 to the Regulations.Marten KennedyMember

Ratio Decidendi

Legal Principle Established

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