Kasambala (Migration)

[2021] AATA 4075

Kasambala (Migration) [2021] AATA 4075 (12 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Harriet Irene Kankunda Kasambala

CASE NUMBER:  1927801

HOME AFFAIRS REFERENCE(S):          BCC2017/2339346

MEMBER:Marten Kennedy

DATE:12 March 2021

PLACE OF DECISION:  Adelaide

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

Statement made on 12 March 2021 at 1:13pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – direct entry stream – English language proficiency – applicant sat prescribed test but did not achieve required score – submissions provided to tribunal but no documentary evidence – no discretion to consider compassionate or compelling circumstances – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 359(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 187.232

STATEMENT OF DECISION AND REASONS

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. The applicant applied for the visa on 30 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). 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 Youth Worker (ANZSCO 411716).

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 had not demonstrated that she had ‘competent English’ at the time of application, nor demonstrated she was in a class of persons exempt from that requirement.

6. The delegate mentioned that the applicant had asserted in her application that she had undertaken a prescribed test and achieved the required score in order to demonstrate competent English, but did not provide the corroborating documentary evidence.  The delegate indicated she was able to access the applicant’s results nonetheless, and noted the applicant had sat for a prescribed test but not achieved the required score.  The delegate further observed that the applicant did not hold a specified passport, and did not fall within a class of exempt persons.

7. The applicant applied to the Tribunal for review.  Using the procedure provided for by section 359(2) of the Act I wrote the applicant on 13 January 2021 inviting her to provide information, supported by corroborating documentary evidence demonstrating that she had ‘competent English’ at the time of the visa application on 30 June 2017, or was in a class of exempt persons.  My letter explained how ‘competent English’ may be demonstrated by reference to the applicable regulation and legislative instruments, but observed that there were no exemptions provided for in relation to the Direct Entry stream in the relevant legislative instrument.

8. The applicant, through her registered migration agent, provided a series of submissions to the tribunal in response to the invitation.  The response addresses a range of matters, but do not contain information supported by documentary evidence demonstrating the applicant had competent English at the time of the visa application.

9. It is clear that the material provided by the applicant hopes to move the Tribunal to provide a discretionary and compassionate response to the applicant’s personal circumstances, but the Tribunal has no discretion or scope to provide a compassionate response to the applicant’s personal circumstances.

10. As the applicant did not provide the information requested in the letter issued to her under section 359(2) of the Act, she is no longer entitled to appear before the Tribunal. I have completed the review on the information available to me.

    CONSIDERATION

    English language proficiency

11. At the time the visa application is made, an applicant in the Direct Entry stream must have ‘competent English’. As mentioned in my letter of 13 January 2021, the applicable legislative instrument (IMMI 17/058) does not contain a class of exempt persons in respect of applications made under the Direct Entry Stream: cl 187.232 of Schedule 2 to the Regulations.

12. ‘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.

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

13. In her response to the Tribunal’s letter of 13 June 2021, the applicant has demonstrated that she undertook an IELTS test and achieved the required score for ‘competent English’ on 21 July 2012.  However, as is clear from reg.1.15C, the specified language test and specified score must be achieved within 3 years preceding the visa application.  Unfortunately, therefore, the test and score of 21 July 2012 does not serve to demonstrate ‘competent English’ at the time of application in 2017.

14. It appears that the applicant recognised as much at the time of the visa application, as she had arranged to attempt a different prescribed test and was no doubt confident she would achieve the required score having previously done so.  As the applicant has conceded however, the test she attempted on 25 June 2017 did not achieve the required score in two of the four test components.

15. I note also that the applicant attempted a third test in September 2017 and again failed to achieve the required score in one of the four test components.  Even if the applicant had achieved the required score however, this test would not have demonstrated competent English at the time of the visa application.

16. The applicant does not hold a specified passport.

17. It follows therefore that the applicant has not demonstrated ‘competent English’ at the date of the visa application.  As there are no relevant exemptions, this means the visa applicant does not meet the requirements of cl.187.232.

18. The applicant has urged the Tribunal in her statutory declaration to consider her case against compassionate and compelling circumstances.  Other information provided by the applicant puts forward what those circumstances are.  The Tribunal has no lawful discretion to reach a different decision based on those circumstances in respect of cl.187.232.

19. The applicant is advised by a registered migration agent who may be able to assist her seek alternative pathways for migration to Australia, or perhaps approach the Department to consider referring her circumstances to the Minister for consideration of his personal discretion.

20. 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

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

    Marten Kennedy

    
    

    Member