Mankanwar Preet Singh (Migration)

[2017] AATA 2797

Mankanwar Preet Singh (Migration) [2017] AATA 2797 (12 December 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Mankanwar Preet Singh

CASE NUMBER:  1716419

DIBP REFERENCE(S):  BCC2016/3743284

MEMBER:Antonio Dronjic

DATE:12 December 2017

PLACE OF DECISION:  Melbourne

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 12 December 2017 at 2:49pm

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – IELTS test scores – Competent English

LEGISLATION
Migration Act 1958, ss 65, 360(2)(a)
Migration Regulations 1994, 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 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 to the Department of Immigration for the visa on 9 November 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in the Direct Entry stream. This stream is designed for persons who have never, or have only briefly worked in the Australian labour market and are applying for the visa outside Australia, or are applying from inside Australia but are not eligible for the Temporary Residence Transition stream.

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 delegate found that the visa applicant is not mentioned in the classes of persons that are exempt from the English language criteria and has failed to provide evidence of competent English as specified by the relevant instrument.

6. With the review application, the applicant submitted a copy of IELTS report undertaken on 24 October 2015 evidencing the following results: Listening 7.0; Reading 6.0; Writing 6.0 and Speaking 7.0. The tribunal verified these results.

7. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicants favour on the basis of the material before it. 

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

8. 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 the relevant legislative instrument.

9. ‘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 the relevant legislative instrument.

10. The Tribunal finds that the applicant undertook an IELTS test on 25 October 2015 in which the applicant achieved the following results: Listening 7.0; Reading 6.0; Writing 6.0 and Speaking 7.0. The Tribunal is satisfied that the test is specified by the Minister in the relevant instrument and that it was conducted in the 3 years immediately before the date of invitation.

11. Accordingly, the Tribunal finds that, at the time of application, on 9 November 2016, the applicant had competent English. The Tribunal therefore finds that the applicant meets cl.187.232.

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

    DECISION

13. 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.

    Antonio Dronjic
    Member