1614325 (Migration)

[2016] AATA 4829

1614325 (Migration) [2016] AATA 4829 (29 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Merlo Bayawa Gio
Mrs Maribel Ragudo Gio
Mr Frince Merbel Ragudo Gio

CASE NUMBER:  1614325

DIBP REFERENCE(S):  BCC2016/2154555

MEMBER:Catherine Carney-Orsborn

DATE:29 December 2016

PLACE OF DECISION:  Sydney

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

Statement made on 29 December 2016 at 3:29pm

CATCHWORDS

Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – cl.187.232 – Competent English – Diesel Motor Mechanic – Tertiary education mostly in English – IELTS test results

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2 cl 187.23, r.1.15C

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617

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 24 June 2016. 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 Diesel Motor Mechanic. 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 because he did not demonstrate that he has competent English or is the holder of a class of persons specified in the clause.

6. The applicants appeared before the Tribunal on 14 December 2016 to give evidence and present arguments.

7. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant meets the criteria in cl.187.232.

   English language proficiency

10. 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 IMMI 15/083: cl.187.232.

11. ‘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.

12. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

13. The Tribunal took evidence from the applicant.  The applicant submitted that he had adequate English skills.  He submitted that his education had been mostly in English in the Philippines. He stated he had tertiary education in Philippines.  He provided submissions which stated that his education had been in English.

14. At the time of application (24 June 2016) the applicant provided an IELTS test dated 4 June 2016.  In that test as set out in the decision record the applicant did not achieve a score of at least 6 in each of the four test components.  He therefore did not meet subregulation 1.15C(1).

15. The applicant does not hold a passport as specified in the relevant instrument.

16. The applicant submitted that as he has been educated in mostly English he would satisfy the criteria however he has been nominated under the Direct Entry scheme and therefore does not meet the criteria cl.187.223.

17. The Tribunal finds that the applicant at the time of application did not have a specified passport or achieved the specified score in a specified test in the 3 years before the application nor is he specified in the class of exempt applicants.

18. Therefore, cl.187.232 is not met.

19. 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.

    DECISION

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

    Catherine Carney-Orsborn
    Member