BRITO BEZERRA CAMPELO DE MORAES (Migration)

[2019] AATA 269

BRITO BEZERRA CAMPELO DE MORAES (Migration) [2019] AATA 269 (5 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Claudia BRITO BEZERRA CAMPELO DE MORAES
Mr Wellington CAMPELO DE MORAES

CASE NUMBER:  1815033

HOME AFFAIRS REFERENCE(S):           BCC2018/399927

MEMBER:Wan Shum

DATE:5 February 2019

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 05 February 2019 at 4:38pm

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class EN) visa – Subclass 187 Regional Sponsored Migration Scheme – Direct Entry stream – competent English – decision under review affirmed            

LEGISLATION

Migration Act 1958, s 65
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) Subclass 187 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 187 (Regional Sponsored Migration Scheme) visas on 24 January 2018.

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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Direct Entry stream. Under this stream, it is a requirement for the Subclass 187 visa that the applicant has competent English at the time of application or is in a class of persons specified by the Minister: cl.187.232 of Schedule 2 to the Regulations.

5. The delegate refused to grant the visas because the applicant did not provide evidence at the time of application of having competent English. Nor was she found to be in a class of persons specified by the Minister. The delegate found that the applicant did not meet cl.187.232.

6. The applicants sought review of that decision.

7. The applicant appeared before the Tribunal on 13 December 2018 to give evidence and present arguments.

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 has the required level of English proficiency for the visa.

10. At the time the visa application was made, an applicant in the Direct Entry stream must either have competent English, or be in a class of persons specified by the Minister: cl.187.232. The relevant legislative instrument for a Subclass 187 visa made after 1 July 2017 and before 18 March 2018 is IMMI 17/058. There is no class specified for the purposes of cl.187.232(b) in that instrument.

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.

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

12. The applicant told the Tribunal that she had relied upon the advice of a migration agent who had told her that she did not need to sit another English language test for this visa. She had specifically asked whether she needed to do the test again, but had been advised that she did not. She had undertaken a TOEFL test in 2016 and she did not achieve the minimum scores required in that test to meet the definition in r.1.15C. The applicant showed the Tribunal a letter on her mobile device from her migration agent which essentially confirmed that they had not properly advised her about the English language requirement.

13. It is clearly unfortunate that the applicant was given incorrect advice and that she relied upon that advice when applying for the visa. However, as the applicant has not presented evidence of having achieved the minimum scores required in one of the specified language tests in the 3 years before the visa application was, there is no evidence before the Tribunal that meets the definition of competent English in r.1.15C(1).

14. The applicant holds a passport of Brazil, which is not one of the specified countries for r.1.15C(2). She thus does not have competent English as defined in r.1.15C and she does not satisfy cl.187.232(a).

15. In respect of whether she is in a class of persons specified for the purposes of cl.187.232(b), the relevant instrument is IMMI 17/058 which does not specify any class of persons for this subparagraph. She does not meet cl.187.232(b).

16. Therefore, cl.187.232 is 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.

    DECISION

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

    Wan Shum
    Member