Kaur (Migration)

[2019] AATA 2466

Kaur (Migration) [2019] AATA 2466 (16 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Tejinder Kaur
Mr Yadwinder Singh
Miss Rashmeet Kaur
Miss Charnjot Kaur

CASE NUMBER:  1903389

HOME AFFAIRS REFERENCE(S):           BCC2017/1684239

MEMBER:Wan Shum

DATE:16 May 2019

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.232 of Schedule 2 to the Regulations.

Statement made on 16 May 2019 at 3:07pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – cook – English language requirements – English test result provided – competent English – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19, 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 Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) Subclass 187 (Regional Sponsored Migration Scheme) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the Subclass 187 visas on 11 May 2017.

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 first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of cook.

5. The delegate refused to grant the visas because the applicant did not provide evidence of having competent English and was not exempt from meeting this requirement. The delegate found that cl.187.232 of Schedule 2 to the Regulations was not satisfied.

6. The applicants sought review of that decision and were represented in relation to the review by a registered migration agent.

7. On review, the representative submitted an English test result to the Tribunal which did not appear to have been provided to the Department. It was submitted that based on this test result, the applicant did in fact have competent English at the time of application, satisfying the criterion 187.232 of the Migration Regulations 1994. A request was made for a decision to remit the matter to the Department without a formal hearing. The Tribunal has proceeded to a decision on this basis.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has the required level of English language proficiency for the visa.

   English language proficiency

9. At the time the visa application is 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 12/059: cl.187.232.

10. ‘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.

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

11. On review, the applicant has provided evidence of having undertaken an IELTS test on 2 April 2016, in which she achieved at least 6 in each of the four test components; 7.0 for listening, 6.0 for reading, 6.0 for writing, 6.0 for speaking.

12. The Tribunal has obtained verification of these results.

13. As the test was conducted within the 3 years immediately before the date of the visa application, which was the 11 May 2017, the applicant has competent English as defined. It is odd that the representative submits that the results appear to have been missed by the delegate, as the information before the Tribunal indicates that the test was not provided to the Department. The test details provided on the visa application form match those of the test results that were considered by the delegate, that is the test taken on 1 August 2015. In any event, the test results for 16AU000177TT105A have now been provided to the Tribunal and cl.187.232(a) is satisfied. Therefore, cl.187.232 is met.

14. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

    ·cl.187.232 of Schedule 2 to the Regulations.

    Wan Shum
    Member