Hardwick (Migration)

[2021] AATA 100

Hardwick (Migration) [2021] AATA 100 (21 January 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Warren Ian Hardwick

CASE NUMBER:  1726004

HOME AFFAIRS REFERENCE(S):         BCC2017/2288001

MEMBER:Stavros Georgiadis

DATE:21 January 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 21 January 2021 at 3:53pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – English language proficiency – specified English language test – less than required score in one component – consent to decision on papers – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 187.232(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 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 (Cth) (the Act).

2. The applicant applied for the visa on 28 June 2017. 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 Direct Entry stream, to work in the nominated position of Occupational Health and Safety Adviser (ANZSCO 251312).

5. The delegate refused to grant the visa because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations as the applicant provided no evidence of English language proficiency to demonstrate an IELTS test score of at least 6 points in each of the four test components of listening, reading, writing and speaking, in order to meet competent level of English [cl.187.232(a)]; and the delegate also found the applicant did not fall into any of the classes of persons that are exempt from the English language criteria [cl.187.232(b)].

6. The applicant was invited to appear before the Tribunal to give evidence and present arguments but declined the invitation in writing and consent to the Tribunal making a decision on the papers.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is: whether the applicant meets cl.187.232 of Schedule 2 to the Regulations relating to the English language proficiency requirements [cl.187.232(a)]; and whether the applicant is in any of the classes of persons that are exempt from the English language criteria [cl.187.232(b)].

   English language proficiency

9. At the time the visa application was made, an applicant in the Direct Entry stream must have either competent English, or be in a class of persons specified in legislative instrument IMMI 15/083 [cl 187.232].

10. ‘Competent English’ is defined in reg 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.

11. The tests, scores and passports for these purposes are specified in legislative instruments IMMI12/018 and IMMI 15/005.

12. On the visa application form, the applicant had declared that he undertook an IELTS test on 24 June 2017 having the Test Reference Number 0000000. On 3 August 2017 the applicant provided further information by way of Form 1023, Notification of an incorrect answer and advised that the IELTS test was undertaken on 13 May 2017 having the Test Reference Number 17AU000295HARW120G.

13. The results of the IELTS test were provided on 28 July 2017.  The test records the applicant’s above Test Reference Number 17AU000295HARW120G and reports the following scores in each component for English proficiency:

    ·Listening                   6.5

    ·Reading                    5.0

    ·Writing   6.0

    ·Speaking                   9.0

14. The aforementioned hearing invitation letter sent to the applicant on 11 August 2020 advised that if the applicant did not participate in the scheduled hearing, the Tribunal may make a decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal or may dismiss the application for review without any further consideration of the application or the information before it.  The applicant had the opportunity to attend by video conference but declined the invitation to come before the Tribunal. Accordingly, the Tribunal has proceeded to make its decision on the review without taking any further action to allow or enable the applicant to appear before the Tribunal.

15. The Tribunal finds from the above evidence discussed that the applicant has not obtained an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking and accordingly, his test results do not demonstrate the competent level of English required under cl 187.232(a).

16. The applicant is a holder of a passport issued by South Africa. The Tribunal finds he is not a person who holds a passport type specified by the Minister in an instrument in writing [IMMI 15/005].

17. An employment contract provided together with the visa application confirms that the applicant’s base salary was $68,328 per year. As the applicant’s earnings are not at least equivalent to the current Australian Tax Office top individual income tax rate (which is significantly higher), he does not meet exemption from the English language criteria under Class 1 [IMMI 15/083].

18. The Tribunal finds that the applicant has not provided evidence, as specified in the relevant instrument in writing, of having achieved a score in a language test conducted in the 3 years immediately before the day on which the application was made.  It follows that he does not meet clause 187.232(a). The Tribunal further finds that the applicant is not included in the classes of persons who are exempt from the English language criteria.  Accordingly, he does not meet clause 187.232(b).

19. As the applicant does not meet clause 187.232(a) and 187.232(b), he does not meet regulation 187.232.

20. Therefore, cl 187.232 is not met.

21. 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

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

    Stavros Georgiadis

    
    

    Member

    cl.187.232

    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.

    Competent English is defined as follows:

    Reg 1.15C      Competent English

    (1)      A person has competent English if:

    (a)   the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

    (b)  the person is an applicant for a visa; and

    (ba)  for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

    (bb)  for a person to whom paragraph (ba) does not apply — the test was conducted in the 3 years immediately before the day on which the application was made; and  (c)  the person achieved a score specified in the instrument.  

    (2)  A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

    Extract of an Instrument in writing

    F2014L01666    [10/12/2014]

    IMMI 15/005

    LANGUAGE TESTS, SCORE AND PASSPORTS 2015

    5.                  SPECIFY for applications lodged on or after 1 January 2015 tests, test scores and passports as follows:

    D.          for paragraph 1.15C(1)(a), the following language tests:

    i.            an International English Language Test System (IELTS) test; or

    ii.              an Occupational English Test (OET); or   iii.              a Test of English as a Foreign Language internet-based Test (TOEFL iBT); or

    iv.              a Pearson Test of English Academic (PTE

    Academic); or

    v.              a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English).

    E.           for paragraph 1.15C(1)(c) the following test scores:

    i.            an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or

    ii.              an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or

    iii.              a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or

    iv.              a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or

    v.              a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading writing and speaking.

    F.            for subregulation 1.15C(2), 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.

    The classes of persons that are exempt from the English requirements are given in a legislative instrument as specified below;

    Extract of an Instrument in writing

    F2015L01018         [  30/06/2015]

    IMMI 15/083

    SPECIFICATION OF CLASS OF PERSONS 2015

    (Subclause 186.234(3) and Paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and Sub-subparagraph 5.19(4)(h)(ii)(D))

    I, MICHAELIA CASH, Assistant Minister for Immigration and Border Protection, acting under

    Subclause 186.234(3) and paragraphs 186.221(b), 186.222(b), 186.231(b), 186.232(b), 187.221(b), 187.222(b), 187.231(b), 187.232(b), 187.234(a) and sub-subparagraph 5.19(4) (h)(ii)(D) of the Migration Regulations 1994 (the Regulations):

    1.    REVOKE Instruments IMMI 12/059 (F2012L01292), signed on 12 June 2012,  IMMI 12/060 (F2012L01283), signed on 12 June 2012, and IMMI 13/059 (F2013L01147), signed on 21 June 2013; and

    2.    SPECIFY the following class of persons for the purposes of subclause 186.234(3) and paragraphs 186.222(b), 186.232(b), 187.222(b), 187.232(b) and 187.234(a) of the Regulations:

    Class 1

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

    This Instrument, IMMI 15/083, commences on 1 July 2015.

    Dated: 25th June 2015