Bajaj (Migration)

[2022] AATA 5207

Bajaj (Migration) [2022] AATA 5207 (4 March 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Parul Bajaj
Mr Gaurav Suneja

CASE NUMBER:  1926395

HOME AFFAIRS REFERENCE(S):          BCC2019/2685738

MEMBER:Katie Malyon

DATE:4 March 2022

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 04 March 2022 at 5:11 pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – position of Cafe or Restaurant Manager – English language requirements – request for Ministerial Intervention – decision under review affirmed     

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cl 187.232; r 1.15

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 Home Affairs 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 for the visas on 23 May 2019.  At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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 3 alternative visa streams: the Temporary Residence Transition stream; the Direct Entry stream; or, the Labour Agreement stream.

4. In the present case, the first named applicant – Indian national Mrs Parul Bajaj - is seeking the visa in the Direct Entry stream to continue working in the nominated position of Cafe or Restaurant Manager with sole trader Amandeep Kumat Handa T/A Culinary King Indian Restaurant ABN 17 647 678 931 based in North Hobart.

5. The delegate refused to grant the visas on the basis Mrs Bajaj did not meet cl.187.232 of Schedule 2 to the Regulations because she did not meet the English language requirements at the time of lodgement of the visa application on 23 May 2019. A copy of the delegate’s decision was provided to the Tribunal.

6. Mrs Bajaj appeared before the Tribunal on 2 March 2022 to give evidence and present arguments on behalf of the applicants.  The hearing was held by way of teleconference.  At the commencement of the hearing, the Tribunal noted it had received communications from Mrs Bajaj that the applicants have recently been divorced and that it was appropriate she raise this issue with the Department.  Mrs Bajaj confirmed she understood the Tribunal’s comments in this regard. 

7. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed. It has also considered whether this is an appropriate case to the refer to the Minister pursuant to s.351 of the Act.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Issue

8. The applicants applied for Subclass 187 visas in the Direct Entry stream. The issue in this case therefore is whether the primary visa applicant Mrs Parul Bajaj meets the criteria in cl.187.232 of Schedule 2 to the Regulations.

   English language proficiency

9. In relation to an applicant seeking to satisfy the primary criteria for a Direct Entry Subclass 187 visa, cl.187.232 of Schedule 2 to the Regulations requires that:

   At the time of application, the applicant:

   (a)had competent English; or,

   (b)was a person in a class of persons specified by the Minister in an instrument in writing for this paragraph.

   The Tribunal has considered these provisions as they apply in this case.

   Issue 1 - Does the primary applicant have ‘competent English’?

10. The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if either they:

    1)undertook a specified language test in the 3 years immediately before the day the visa application was made and achieved a specified score (emphasis added); or,

    2)hold a specified passport.

11. The following test scores are specified in IMMI 15/005 for the purposes of r.1.15C(1) of the Regulations:

    a)an IELTS test score of at least 6 in each of the 4 test components of speaking, reading, writing and listening (the 4 Test Components); or

    b)an OET test score of at least B in each of the 4 Test Components; or

    c)a TOEFL iBT test score with at least the following scores in the 4 Test Components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

    d)a PTE Academic test score of at least 50 in each of the 4 Test Components.

12. The Department’s file confirms that, in her visa application, Mrs Bajaj responded in the negative to the question as to whether she had undertaken an English-language test in the 36 months prior to lodgement of the application on 23 May 2019. During the hearing, Mrs Bajaj confirmed that she had not undertaken an English-language test in the 3 years from 23 May 2016 to 23 May 2019. She did, however, state that she has recently undertaken and IELTS test where she scored 6 in each of the 4 Test Components. The Tribunal noted the time of application criterion in cl.187.232 of Schedule 2 to the Regulations is clear and unambiguous: as such, it was necessary to provide evidence of having competent English at the time of lodgement of the visa application. Mrs Bajaj confirmed she understood the Tribunal’s position in this regard.

13. Although Mrs Bajaj was invited to provide evidence to the Tribunal of having recently undertaken an IELTS test in which she scored 6 on each of the 4 Test Components and thereby can demonstrate that she now has competent English, no such evidence has been provided.  

14. Having considered available evidence the Tribunal finds that, at the time her Subclass 187 visa application was lodged on 23 May 2019, Mrs Bajaj had not undertaken a specified English language test in the 3 years immediately before that day in which she achieved the specified score in accordance with IMMI 15/005.

15. The relevant passports specified in IMMI 15/005 for the purposes of r.1.15C(2) of the Regulations are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country. Mrs Bajaj holds a passport from India. She confirmed this at the hearing. An Indian passport is not one of the 5 countries specified in IMMI 15/005.

16. In summary, evidence before the Tribunal confirms Mrs Bajaj has not, in the 3 years immediately preceding lodgement of her Subclass 187 visa application on 23 May 2019, undertaken an English language test specified in IMMI 15/005 which demonstrates she has ‘competent English’ and nor does she hold a specified passport. Accordingly, the Tribunal finds that Mrs Bajaj does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations at the time of application.

17. Therefore, cl.187.232(a) of Schedule 2 to the Regulations is not met.

    Issue 2 - Is the primary applicant within a class of specified persons?

18. As Mrs Bajaj’s Subclass 187 visa application was lodged on 23 May 2019, the relevant legislative instrument for the purposes of cl.187.232(b) of Schedule 2 to the Regulations is IMMI 18/045.

19. There are no classes of specified persons for the purposes of the Direct Entry stream in cl.187.232(b) of Schedule 2 to the Regulations in IMMI 17/058. Rather, the only class of persons specified for exemptions to the English language requirements relate to applicants who have applied for a Subclass 186 visa or a Subclass 187 visa in the Temporary Residence Transition stream.

20. Evidence before the Tribunal indicates that Mrs Bajaj has not applied for a Subclass 187 visa in the Temporary Residence Entry stream.  This was confirmed at the hearing.

21. Therefore, cl.187.232(b) of Schedule 2 to the Regulations is not applicable in the circumstances of this case.

    Conclusion

22. As the Tribunal has found that Mrs Bajaj does not satisfy either cl.187.232(a) or cl.187.232(b) of Schedule 2 to the Regulations, it therefore finds that cl.187.232 of Schedule 2 to the Regulations is not met.

23. Mrs Bajaj 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.

24. The application of the second named applicant, Mr Gaurav Suneja, is based on his being a member of the family unit of a person who meets the primary criteria.  As Mrs Bajaj does not meet the primary criteria, Mr Suneja cannot meet the criteria for the grant of the visa.  Accordingly, the Department’s decision to refuse his Subclass 187 visa application must also be affirmed.

    Is this an appropriate matter to refer to the Minister?

25. The Tribunal has considered whether the circumstances of this case warrant referral to the Minister under s.351 of the Act. The Minister may substitute, for a decision of the Tribunal, a decision which is more favourable to an applicant, if the Minister thinks it is in the public interest to do so consistent with s.351 of the Act (emphasis added).

26. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for consideration of use of the powers under s.351 of the Act, nor is there any statutory power to make a binding recommendation in this regard. The power under s.351 of the Act may only be exercised by the Minister personally. Further, the powers are non-compellable, in the sense that the Minister has no duty to consider whether to exercise the relevant power, regardless of whether being requested to do so by the applicant, or any other person, or in any other circumstances.

27. The Minister has issued guidelines explaining the circumstances for consideration of exercising the public interest powers under s.351 of the Act.[1]  Also indicated are cases where it would be inappropriate to bring a matter to the Minister’s attention.  The guidelines indicate that the Minister will give possible consideration to exercising the public interest powers in cases which are referred by the Tribunal and which exhibit one or more unique or exceptional circumstances. The Guidelines also indicate that in cases referred by the Tribunal under the s.351 of the Act, the Department will provide the Minister with any other relevant information. 

    [1] >

    During the course of the hearing the Tribunal raised its power to refer the matter to the Minister.  Mrs Bajaj indicated she was aware of the Minister’s powers and she may pursue this herself.  After the hearing, Mrs Bajaj provided a copy of her Pearson PTE Academic test undertaken 27 October 2019 (that is, 5 months after lodgement of the visa application) which confirms she scored Listening 60, Reading 55, Speaking 48 and Writing 69.  This confirms she did not have ‘competent English’ as at 27 October 2019 since her Speaking score is below 50.  No other evidence was provided to the Tribunal either during the hearing or after the hearing to engage its consideration of the power to refer this matter to the Minister. 

    DECISION

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

    Katie Malyon

    Member