1506021 (Migration)

[2015] AATA 3710

1506021 (Migration) [2015] AATA 3710 (18 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dexter Ligo
Mrs Robelita Ligo
Miss Dorina Marie Ligo
Miss Monique Ligo

CASE NUMBER:  1506021

DIBP REFERENCE(S):  BCC2014/3274432

MEMBER:Glen Cranwell

DATE:18 November 2015

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.222 of Schedule 2 to the Regulations.

Statement made on 18 November 2015 at 11:16am

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 1 December 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 (the applicant) is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Welder (First Class). 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 applicant did not meet cl.187.222 of Schedule 2 to the Regulations.

6. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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 12/059: cl.187.222.

8. IMMI 12/059 specifies 3 classes of persons who are exempt with respect to the English language requirement.  Relevantly, Class 3 refers to the class of persons who have completed at least 5 years of full time study in secondary and/or higher education institution where all of the tuition was delivered in English.

9. The applicant provided the Department with a letter from Asian College of Science and Technology, stating that he was the graduate of a 2 year “Electronic and Computer Technology” course where the medium of instruction was English.

10. The applicant provided the Tribunal with a letter from Diaz College, stating that he had completed 3 years of high school where the medium of instruction was English.

11. As the applicant has provided evidence that he has completed 5 years of full time study in secondary and higher education where all of the tuition was delivered in English, the Tribunal finds the applicant falls within Class 3 of IMMI 12/059, and therefore meets the requirement prescribed in cl.187.222(b) of Schedule 2 to the Regulations.

12. Therefore, cl.187.222 is met.

13. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

14. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.222 of Schedule 2 to the Regulations.

    Glen Cranwell
    Member