Gulvi (Migration)

[2018] AATA 4855

Gulvi (Migration) [2018] AATA 4855 (15 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Lalit Ramakant Gulvi

CASE NUMBER:  1620546

HOME AFFAIRS REFERENCE(S):           BCC2016/167865

MEMBER:Susan Trotter

DATE:15 October 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 15 October 2018 at 12:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 Regional Sponsored Migration Scheme – English language test – English language proficiency – no exemptions available – applicant’s earnings – decision under review affirmed


LEGISLATION
Migration Act 1958 (Cth), ss 65, 359, 360
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 (the Minister) on 28 November 2016 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 12 January 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 the Direct Entry stream, to work in the nominated position of Chef.

5. The delegate refused to grant the visa on the basis that the applicant did not meet cl.187.232 of Schedule 2 to the Regulations because the applicant had not provided evidence, as specified in the relevant instrument in writing, of having achieved a score in an English language test conducted in the three years immediately before the day on which the application was made such that cl.187.232(a) was satisfied. Further, as the applicant was not mentioned in the classes of persons that are exempt from the English language criteria, the applicant did not satisfy cl.187.232(b).

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 December 2016.

7. The applicant was represented in relation to the review by his registered migration agent.

8. The Tribunal wrote to the applicant, care of his representative, on 18 September 2018, pursuant to s.359(2) of the Act, inviting him to provide information showing that he satisfied cl.187.232.

9. On 2 November 2018, the Tribunal received a response to the 18 September 2018 invitation noting that the applicant agreed he did not meet the relevant English requirement at the time of his Subclass 187 visa application.

10. On 4 October 2018, the Tribunal again wrote to the applicant, care of his representative, amongst other things, enquiring as to whether given his agreement that he did not meet the relevant English requirement for the Subclass 187 visa to be granted, whether he consent to the Tribunal deciding the review without him appearing before the Tribunal.

11. On 15 October 2018, the Tribunal received written consent signed by the applicant, pursuant to s360(2)(b) of the Act, that the applicant consented to the Tribunal proceeding to make a decision on the review without him appearing before it.

12. Accordingly, this matter has been determined on the evidence available to the Tribunal.

13. The Tribunal had before it the Departmental file and the Tribunal file relating to the application.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

    English language proficiency

15. At the time the visa application was made cl.187.232 of Schedule 2 to the Regulations stated:

    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.

16. ‘Competent English’ is defined in r.1.15C of the Regulations. A person will have competent English if he or she either:

    (a)undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    (b)holds a specified passport.

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

18. It follows that the issues to be determined by the Tribunal are as follows:

    (a)  Did the applicant have competent English, as defined, at the time of the visa application? Or,

    (b)  Is the applicant in a class of persons specified in the relevant instrument?

    CONSIDERATION

19. The applicant has advised the Tribunal that he agrees that he did not meet the relevant English requirement at the time of his Subclass 187 visa. For completeness, the Tribunal independently considered whether the applicant meets the requirement based upon the evidence before it.

    Issue 1 – Did the applicant have competent English, as defined at the time of the visa application?

20. For the purposes of r.1.15C(1), IMMI 15/005 specifies the relevant tests as being a PTE Academic Test, an IELTS test, an Occupational English Test (OET), a Cambridge English: Advanced (CAE) test or a Test of English as a Foreign Language internet-based test (TOEFLiBT) and various scores are relevantly specified for each test.

21. The applicant has not provided evidence that he has achieved the specified score in any of these specified tests in the three years before the visa application and therefore cannot satisfy r.1.15C(1).

22. For the purposes of r.1.15C(2), IMMI 15/005 provides that the relevant passports 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.

23. The applicant has stated in his visa application that he holds a passport issued by India and not by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland and therefore cannot satisfy r.1.15C(2).

24. The applicant therefore does not have competent English as defined in r.1.15C.

    Issue 2 – Is the applicant in a class of persons specified in the relevant instrument?

25. The Tribunal notes that IMMI 17/058 repealed the previous instrument specifying the classes of exempt persons (IMMI 15/083) and was expressed to apply to all Subclass 186 and 187 visa applications made on or after 1 July 2017, but also to all Subclass 186 and 187 visa applications made before that date which were not finally determined as at 1 July 2017. This includes the application under review.

26. Item 12 of IMMI 17/058 provides that, for the purposes of cl.186.222(b) and cl.187.222(b) for Subclass 186 and 187 visas in the Temporary Residence stream, the following class of person is specified as exempt:

    Persons who have completed at least five years of full-time study in a secondary and/or higher education institution where all of the tuition was delivered in English.

27. However, IMMI 17/058 is silent on whether there are any exemptions for Subclass 186 or 187 visas in the Direct Entry stream, for the purposes of cl.186.232(b) or cl.187.232(b). It therefore appears that there are no exemptions to applicants in the Direct Entry stream having to meet cl.187.232(a).

28. The Tribunal notes that IMMI 17/058 was itself repealed by IMMI 18/045 on 18 March 2018, but this simply replicates the terms of IMMI 17/058 in relation to exemptions to the English language requirement for subclass 186 and 187 visa applicants. It does not provide any additional exemption category for visa applicants in the Direct Entry stream.

29. Nevertheless, there is some ambiguity about whether the relevant instrument in force at the time of the visa application is in fact the correct one to apply. If this is so (as the Department’s policy manual (PAM 3) and press releases at the time that IMMI 17/058 was introduced suggested, despite the clear wording of IMMI 17/058 to the effect that it repealed the previous instrument and applied to all Subclass 186 and 187 visa applications pending as at 1 July 2017), then arguably IMMI 15/083 would be the applicable instrument. Item 2 of that instrument provides that there is one class of exempted persons for the purposes of cl.186.232(b):

    Class 1

    Persons who have applied… for a visa and whose earnings will be at least equivalent to the current Australian Tax Office’s top individual income tax rate.

30. The ATO top individual income tax rate at the time of the visa application was $180,001. There is no evidence before the Tribunal to indicate the applicant is a person whose earnings are at least equivalent to the ATO’s top individual rate. Therefore he is not a person in a class of person specified by the Minister in the legislative instrument for cl.187.232(b).

    Conclusion

31. As the Tribunal has found that the applicant does not satisfy either cl.187.232(a) or cl.187.232(b), the Tribunal therefore finds that the applicant does not satisfy cl.187.232.

32. 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

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

    Susan Trotter

    Member