1504035 (Migration)

[2015] AATA 3474

1504035 (Migration) [2015] AATA 3474 (7 October 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rodel Ragasa
Mrs Vivian Grace Ragasa
Master James Andrew Ragasa

CASE NUMBER:  1504035

DIBP REFERENCE(S):  BCC2014/2944883

MEMBER:Fraser Syme

DATE:7 October 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the first named applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

The Tribunal does not have jurisdiction in relation to the second and third named applicants.

Statement made on 07 October 2015 at 3:05pm

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 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied to the Department of Immigration for the visas on 5 November 2014. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 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 is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of fitter. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least 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 first named applicant did not meet cl.187.222 of Schedule 2 to the Regulations. He did not provide evidence he has Vocational English or that he was an exempt applicant. The applicants included the delegate’s decision with the review application.

6. The first named applicant appeared before the Tribunal via telephone on 7 October 2015 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent. The migration agent too attended the Tribunal hearing via telephone and provided a submission to the Tribunal prior to the hearing attaching evidence relevant to the English language ability of the first named applicant which was already before the delegate. She submitted that evidence demonstrated the first named applicant is an exempt applicant.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed in relation to the first named applicant and that the Tribunal does not have jurisdiction in relation to the second and third named applicants.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the first named applicant has Vocational English or is an exempt applicant for the purpose of cl.187.222.

   English language proficiency

10. 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 IMMI12/059: cl.187.222 (“an exempt applicant”).

11. ‘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.

12. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI12/018. For the purpose of this decision, the relevant score is of at least 5.0 on each item of an IELTS test taken not more than 3 years before the date of the visa application. Further, for the purpose of this decision, a Philippine passport is not a specified passport.

13. The first named applicant provided to the delegate and the Tribunal an IELTS test report form dated 20 September 2014 on which he scored less than 5.0 for the reading item, albeit he scored 6.0 or 6.5 on the other three items. He provided too his Philippine passport. At the hearing, the first named applicant asked the Tribunal to note his band score of 6.0 was higher than the required 5.0. He explained his lower than expected result for reading was because he ran out of time during the test. The Tribunal is sympathetic to the circumstances of the first named applicant. That though does not change he did not score at least 5.0 on each item of the test. It follows he has not provided evidence which demonstrates he has Vocational English and does not meet the requirement of cl.187.222(a).

14. As the first named applicant has not satisfied the requirement in 187.222(a), the Tribunal must go on to consider whether he is an exempt applicant for the purpose of 187.222(b). For the purpose of this decision, the first named applicant’s nominated position of fitter and nominated salary do not make him an exempt applicant. There remains the question of whether the first named applicant is an exempt applicant on the basis he has completed five years of fulltime study in a secondary and/or higher education institution where all of the tuition was delivered in English.

15. The first named applicant provided to the delegate and the Tribunal his academic records for his high school and vocational school studies in the Philippines, which together add up to more than five years. He provided too a letter from each school. The letter from his vocational school indicates all classes were conducted in English. The letter from his high school states 80% of his classes were conducted in English. At the hearing, the first named applicant explained his classes at high school in the subject Filipino were conducted in Tagalog. He also studied two other Philippine languages. He explained the teachers of those classes generally used Tagalog, but occasionally used English too.

16. The Tribunal put to the first named applicant on the basis of the letter from his high school indicated not all of his tuition was delivered in English, it appeared he did not meet the requirements to be an exempt applicant. The first named applicant replied that English is the second language in the Philippines. He noted too that he has no difficulty in communicating at work.

17. The migration agent requested additional time after the hearing to obtain another letter from the high school of the first named applicant. The Tribunal noted it already had the first letter, given there is no error in that letter, it considered it reasonable not to allow additional time to obtain a second letter. The migration agent further requested the first named applicant be allowed time to sit another IELTS test. The Tribunal noted cl.187.222 is a time of application requirement and the definition of Vocational English required an IELTS test be taken in the three years prior to the date of applying for the visa. It therefore would not assist the first named applicant to provide results an IELTS test sat after the date of the visa application. 

18. The Tribunal considers that 80% of his high school studies being in English does not equate to all of the first named applicant’s high school tuition being delivered in English. For that reason, the Tribunal is not satisfied the first named applicant has completed five years of fulltime study in a secondary and/or higher education institution where all of the tuition was delivered in English. It follows that the first named applicant is not an exempt applicant and does not meet the requirement of 187.222(b).

19. For the above reasons, the Tribunal finds the first named applicant does not meet the requirements of 187.222.

20. The first named applicant has only sought to satisfy the criteria for a Subclass 187 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.

    Secondary applicants

21. Section 347(2) of the Act specifies who has the right to apply for review of a decision that is reviewable under Part 5 of the Act. In the case of a decision described in s.338(2), an application for review may only be made by the non-citizen who is the subject of the decision and is physically present in the migration zone when the application for review is made: s.347(2)(a) and (3). ‘Migration zone’ is defined in s.5(1) of the Act and generally speaking means the Australian States and Territories.

22. At the hearing, the first named applicant confirmed the second named applicant is his wife and the third named applicant their child. He confirmed too that his wife and child were not in Australia when decision was made to refuse the visa nor on the day he applied to the Tribunal to review that decision.

23. The Tribunal finds that the second named applicant and third named applicant were not in the migration zone at the relevant time. As such, the application for review in relation to the second named applicant and third named applicant is not an application properly made under s.347 and it follows that the Tribunal does not have jurisdiction in relation to the second named applicant and the third named applicant.

    DECISION

24. The Tribunal affirms the decision not to grant the first named applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

25. The Tribunal does not have jurisdiction in relation to the second and third named applicants.

    Fraser Syme
    Member