Palley (Migration)

[2017] AATA 110

Palley (Migration) [2017] AATA 110 (10 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sampath Goud Palley

CASE NUMBER:  1603129

DIBP REFERENCE(S):  BCC2015/2310905

MEMBER:Catherine Carney-Orsborn

DATE:10 January 2017

PLACE OF DECISION:  Sydney

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

Statement made on 10 January 2017 at 5:19pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry scheme – cl 187.232 – Position of Retail Manager (General) – Competent English – PTE Academic English test results – Circumstances do not warrant a referral to the Minister

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 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 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 11 August 2015. 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, to work in the nominated position of Retail Manager (General). 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 he did not attain the required level of ‘competent’ English ability.

6. The applicant appeared before the Tribunal on 14 December 2016 to give evidence and present arguments.

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has competent English.

   English language proficiency

10. 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 15/083 cl.187.232.

11. ‘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.

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

13. Included with the applicant’s application to the Department for the visa was a PTE Academic English test.  This test was undertaken on the 20 February 2015.

14. In that test he did not achieve 50 in each of the four test components.  The applicant did not obtain the required test score in the reading component achieving a test score of 46.

15. The applicant provided to the Tribunal a PTE Academic result from a test he completed on 24 June 2016.  In that test he achieved the required score of at least 50 in each of the four testing components.   Unfortunately this test was provided after the date of application and cannot be considered by the Tribunal.

16. No further evidence was provided to the Tribunal which would indicate that the applicant satisfied the criteria.

17. Therefore, cl.187.232  is not met.

18. The applicant has requested the Tribunal to refer his matter to the Minister.  He supplied a letter from his employer in which the employer listed how important the applicant was to his business.

19. The Tribunal while sympathetic to the applicant is not of the opinion that the circumstances that would warrant a referral to the Minister.  The Tribunal is satisfied that the applicant with the assistance of his representative would be able to prepare his own submissions to the Minister.

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

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

    Catherine Carney-Orsborn
    Member