Frans Haryadi Nauli Siregar (Migration)

[2022] AATA 4518

Frans Haryadi Nauli Siregar (Migration) [2022] AATA 4518 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Frans Haryadi Nauli Siregar

REPRESENTATIVE:  Ms Eidy Melanie Douglas (MARN: 1573017)

CASE NUMBER:  2003278

HOME AFFAIRS REFERENCE(S):          BCC2019/5827555

MEMBER:P. Maishman

DATE:6 December 2022

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 06 December 2022 at 3:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – technician or trade worker – English language proficiency – competent English – no specified test undertaken in 3 years before application made – specified scores not achieved in test taken after application made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 187.222(a)

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. Mr Siregar applied for the visa on 18 November 2019. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Technicians and Trades Workers (not elsewhere classified -nec) (ANZSCO 399999).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.222 of Schedule 2 to the Regulations because the delegate was not satisfied Mr Siregar had the required English language proficiency.

6. Mr Siregar appeared before the Tribunal on 6 December 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

7. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that Mr Siregar was given a fair opportunity to give evidence and present arguments.  

8. The applicant’s representative was not present at the hearing. Mr Siregar said this was his preference.   

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The Tribunal had before it a copy of the Department’s file. The Department’s file contains Mr Siregar’s visa application. Mr Siregar declared he is an Indonesian citizen and holds an Indonesian passport. Mr Siregar declared his highest qualification is an AQF Certificate III for Polymer Processing. Mr Siregar declared he undertook the Certificate III for 12 months between 18 Feb 2014 and 18 Feb 2015. Mr Siregar has not completed and is not currently enrolled in any studies at secondary level or above. Mr Siregar provided details of employment showing he has been employed in Australia from February 2010 up to the date of application. Mr Siregar indicated he had not studied in a secondary and/or higher education institution where the instruction was in English; he indicated he had not undertaken an English test in the last 36 months; and he said he had at least functional English language ability.

11. Mr Siregar gave the Tribunal a copy of the delegates decision record with his application for review. Mr Siregar also gave the Tribunal’s written submissions and documents on 2 November 2022.

12. The issue in the present case is whether Mr Siregar has competent English or was a person in a class specified in the appropriate instrument.

    English language proficiency

13. Clause 187.222 requires an applicant in the Temporary Residence Transition stream to either have a defined level of English language proficiency or be in a class of persons specified in legislative instrument LIN 19/216 at the time of visa application. 

14. For visa applications made before 1 July 2017 the level required is vocational English and for visa applications made on or after 1 July 2017 the level required is competent English.

15. ‘Vocational English’ is defined in reg 1.15B and ‘competent English’ is defined in reg 1.15C of the Regulations. For both levels, a person will meet the definition 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.

16. In this instance, having regard to the date of visa application, the required level is competent English. The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

17. Mr Siregar declared on his visa application that he had not undertaken a language test in the three years preceding his visa application.

18. Mr Siregar submitted an International English Language Test System (IELTS) result for a test undertaken on 5 August 2020 certifying he achieved scores for Listening - 5, Reading - 4, Writing - 5 and Speaking - 5. The Tribunal observes cl 187.222(a) requires an applicant to have competent English at the time of application. In any case, the specified score for an IELTS test in IMMI 15/005 needs to be at least 6 in Listening, Reading, Writing and Speaking.

19. The IELTS results were not at the competent level required. Even if Mr Siregar’s IELTS results were at the competent level, the test was undertaken in August 2020 which is after he made his visa application. The results do not relate to Mr Siregar’s English proficiency at the time of his visa application and would have been of no assistance to the Tribunal arriving at a favourable outcome.

20. The specified passports are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland to a citizen of that country.

21. Mr Siregar told the Tribunal that he did not undertake a specified language test in the three years preceding the visa application. Mr Siregar confirmed he holds an Indonesian passport and no other. 

22. On the evidence the Tribunal finds Mr Siregar has not undertaken a specified English language test in the three years prior to the application; obtained the specified English language test scores; and does not hold a passport of a type as specified in IMMI 15/005 at paragraph 5.D; 5.E and 5.F.  

23. Accordingly, Mr Siregar does not have competent English as defined in reg 1.15C and do not meet the requirements of cl 187.222(a).

24. Clause 187.222(b) of the regulations provides an applicant is exempt from the requirement to have competent English if they are a person in a class of persons specified in a Ministerial Instrument. The relevant instrument is LIN 19/216 and specifies a person who has  completed at least five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, to be exempt from the English language requirement.

25. The Tribunal received a copy of Mr Siregar’s Certificate III in Polymer Processing; a card with his unique student identifier number; Safe Right Training Academy transcript issued 26 August 2022 for courses completed; and a White Ticket for his Construction Induction issued on 23 January 2012.

26. Mr Siregar told the Tribunal he had never at any time attended a secondary or higher education and undertaken full-time study.

27. There is no evidence before the Tribunal that Mr Siregar has completed a minimum of five years of full time study in a secondary or higher education institution where all tuition was delivered in English. The Tribunal finds Mr Siregar is not a person in a class of persons specified by the Minister in LIN 19/216 as exempt from the requirement to have competent English.

28. Accordingly, the requirement of cl 187.222(b) is not met.   

29. Therefore, cl 187.222 is not met.

30. Mr Siregar has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.  

    decision

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

    P. Maishman

    Member