CHAROENVILASPONG (Migration)

[2020] AATA 2374

CHAROENVILASPONG (Migration) [2020] AATA 2374 (25 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr NATTAPONG CHAROENVILASPONG

CASE NUMBER:  1713215

HOME AFFAIRS REFERENCE(S):          BCC2016/3599372

MEMBER:Susan Hoffman

DATE:25 June 2020

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visas.

Statement made on 25 June 2020 at 8:04am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Wall and floor tiler – English language proficiency – competent English – required test score – subsequent test not taken within prescribed timeframe – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 187.232

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 and Border Protection to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 October 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of wall and floor tiler (ANZSCO code 333411).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations because the applicant did not satisfy the criteria to be found to have competent English.

6. The applicant appeared before the Tribunal on 18 June 2020 via telephone to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent, Mr Clive Edward Greaves, who attended the hearing.

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’s level of English met the criteria to be found to be competent at the time he lodged his visa application.

   English language proficiency

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 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. At the time of application, the applicant held a passport issued by Thailand. This is not one of the countries listed in IMMI 15/005. That means that the applicant cannot be found to have competent English by virtue of the passport he holds.

14. The applicant provided the Department with a Certificate of Completion dated 7 August 2009 from Swan TAFE that showed he had completed an intensive English language course of 11 weeks’ duration from 11 May 2009 to 7 August 2009 and had achieved an average score across speaking, listening reading and writing of 2+. His attendance rate was 94%.

15. The applicant took an IELTS test on 30 July 2016, and received an overall band score of 6.0 and a CEFR level of B2. He scored 5.5 for listening, 5.5 for reading, 6.0 for writing and 6.0 for speaking.

16. The applicant took a second test after he lodged his visa application, on 21 January 2017, and for this test his overall band score was 6.5 and his CEFR level remained at B2. The scores for listening, reading, writing and speaking were 6.0, 6.5, 6.0 and 6.5 respectively.

17. The requirement as set out in IMMI 15/005 was that a person achieved an IELTS score of at 6.0 in each of the four components of listening, reading, writing and speaking. The applicant did not achieve these scores in the first IELTS test he took, although he did in the second which was taken within three months of him lodging his visa application.

18. Mr Greaves submitted that a request for a review of the results of the test taken on 30 July 2016 was made and it was anticipated that as a result of the review, the applicant would achieve a score of at least 6.0 in each of the four components. There was pressure to lodge the visa application by a particular time which was why it was lodged before the test review results were known. As it transpired, the review did not result in scores of at least 6.0 across the four categories.

19. The regulations are specific in that the test was required to be conducted in the 3 years immediately before the day on which the application was made (r1.15C(1)(bb)) unless the person or their spouse was invited to apply for the visa, which does not apply in this case. If it did, the requirement is that the test was conducted in the 3 years immediately before the date of the invitation (r1.15C(1)(ba)).

20. The applicant did not achieve the required test score in the test he took before he lodged his application for a visa. The Tribunal notes that the applicant achieved better test results in the test he took after he lodged his visa application, but the Tribunal has no discretion in this matter, and can only conclude that the applicant’s level of English did not meet the criteria to be found to be competent at the time he lodged his visa application.

21. Mr Greaves acknowledged that the Tribunal could only affirm the decision. 

22. Therefore, cl.187.232 is not met.

    CONCLUDING PARAGRAPH

23. 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

24. The Tribunal affirms the decision not to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa.

    Susan Hoffman

    Member