1513667 (Migration)

[2016] AATA 3638

1513667 (Migration) [2016] AATA 3638 (31 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Mazzotta Antonio
Mr Thomas Jed Austin

CASE NUMBER:  1513667

DIBP REFERENCE(S):  BCC2015/849484

MEMBER:Glen Cranwell

DATE:31 March 2016

PLACE OF DECISION:  Brisbane

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

Statement made on 31 March 2016 at 10:59am

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 16 March 2015. 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 the Direct Entry stream, to work in the nominated position of Café or Restaurant Manager (ANZSCO 141111). This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

5. The delegate refused to grant the visas because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations.

6. The applicants appeared before the Tribunal on 31 March 2016 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. At the time the visa application is made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified in legislative instrument exempting them: cl.187.232.

9. ‘Competent English’ is defined in r.1.15C of the Regulations.  A person will have competent 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.

10. For the purposes of r.1.15C, the specified English language tests, scores and passports are specified in legislative instrument IMMI 12/018:

    ·an International English Language Testing System (IELTS) test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

    ·an Occupational English Test (OET) score of at least ‘B’ in each of the four components; or

    ·a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

11. The classes of persons that are exempt from the English language criteria are outlined in the legislative instrument (IMMI 12/059).  The exemptions for the purposes of the Direct Entry stream apply to persons who are nominated by a religious institution for the position of Minister of Religion (ANZSCO 272211) or persons who have applied under the Regulations for a visa, and whose earnings will be at least equivalent to the current Australian Tax Office top individual tax rate. 

12. The evidence before the Tribunal indicates that the applicant applied for position of Café or Restaurant Manager.  His employment contract the applicant’s salary for the position will be $51,600 per annum, a salary that is less than the current top individual income tax rate of $180,001.00.  As the exemptions that apply are not applicable to the applicant, the applicant must establish that he has competent English. 

13. The Tribunal finds that the applicant holds an Italian passport, which is not a passport specified in the relevant instrument.

14. The Tribunal finds that the applicant did not achieve the requisite test score in a specified language test in the three years preceding the visa application.  The applicant subsequently undertook an IELTS test on 7 November 2015, however this cannot be taken into account as the test was conducted after the date of the visa application.

15. Accordingly, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C of the Regulations.

16. As the applicant does not meet the requirements of cl.187.232(a) and 187.232(b), the requirements of cl.187.232 are not met. 

17. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Direct Entry 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 Direct Entry stream have not been met, the decision under review must be affirmed.

18. As the first named applicant was found not to have met the prescribed criteria for a Regional Employer Nomination (Permanent) (Class RN) visa, the second named applicant cannot satisfy cl.187.311.

    Ministerial intervention

19. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s.351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

20. At the hearing, the applicant claimed that the Departmental website contained incorrect information.  He referred to an email sent by him to the Department on 18 March 2015, two days after the visa application was lodged, in which he extracted the requirements for functional English from the Departmental website.  The extract appears to accurately reflect the requirements for functional English.  However, the difficulty is that the applicant was required to have competent English rather than functional English.  The Tribunal has reviewed the Departmental website as it presently appears, and the only reference to functional English in the context of a Subclass 187 visa is for applicants with earnings over $180,001.00.  This does not apply to the applicant.  While it is possible that the website may have been amended during the intervening period, there is nothing on the information before the Tribunal to suggest that the Departmental website incorrectly directed the applicant to the requirements of functional English rather than competent English.  By the time the applicant sent the email to the Department, it was too late for the Department to provide advice which could affected the applicant’s ability to meet the criteria for competent English.

21. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas.

    Glen Cranwell
    Member