Malcolm (Migration)

[2018] AATA 3820

Malcolm (Migration) [2018] AATA 3820 (5 September 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tekee Malcolm

CASE NUMBER:  1702261

HOME AFFAIRS REFERENCE(S):           BCC2016/2208459

MEMBER:Karen McNamara

DATE:5 September 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Regional Employer Nomination (Permanent) (Class RN) visa for reconsideration, with the direction that the 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 05 September 2018 at 11:40am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – position of Registered Nurse (Community Health) – competent English – Occupational English Test results – decision under review remitted

LEGISLATION

Migration Act 1958, ss 65, 360

Migration Regulations 1994, Schedule 2 cl 187.232; r 1.15C

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 (the Act).

2. The applicant applied for the visa on 29 June 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 Direct Entry stream, to work in the nominated position of Registered Nurse (Community Health) ANZSCO: 254414.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations because he had not demonstrated that, at the time of application, he had either ‘ competent English, or that he was a person who was exempt from this requirement under the legislation.

6. The applicant lodged an application for review with the Tribunal on 9 February 2017 and a copy of the primary decision was included with the application for review. The Tribunal has before it the Department’s file relating to the applicant. It also had regard to the material referred to in the delegate’s decision and other material provided by the applicant.

7. On the 9 February 2017, the applicant submitted evidence to the Tribunal that he had undertaken an Occupational English Test on the 5 July 2014.

8. As a result and in accordance with subsection 360(2)(a) of the Act, the Tribunal considered that it should decide the review in the applicant’s favour on the basis of the material before it. It was therefore unnecessary to invite the applicant to appear before the Tribunal to give evidence in relation to the decision under review.

9. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant satisfies the requirements of cl.187.232 of schedule 2 to the Migration Regulations.

    English language proficiency

11. 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.

12. ‘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.

13. In his visa application, the applicant stated that he was a citizen of Kiribati and provided a copy of the identification page from his passport in support of his application. Accordingly the Tribunal finds that the applicant was not the holder of a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland when he lodged his application on 29 June 2016. 

14. The Tribunal notes the applicant provided evidence to the Tribunal with his application for review, on 9 February 2017, of achieving the specified score in a specified test in the three years before his application.

15. Evidence before the Tribunal shows that the applicant undertook an Occupational English Test on the 5 July 2014 and attained scores of B for listening, B for reading, B for writing and A for speaking. The Tribunal accepts that the applicant’s results satisfy the requirements of IMMI 15/005.

16. As a result, the Tribunal finds that the applicant had competent English, as defined under r.1.15C, at the time of application for the purposes of cl. 187.232 (a)

17. Therefore, cl.187.232 is met.

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

    DECISION

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

    ·cl.187.232 of Schedule 2 to the Regulations.

    Karen McNamara
    Member