Parnikov (Migration)

[2018] AATA 3559

Parnikov (Migration) [2018] AATA 3559 (13 August 2018)

.

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Vadim Parnikov
Master Daniil Parnikov
Ms Oksana Parnikova

CASE NUMBER:  1619623

DIBP REFERENCE(S):  BCC2016/2507511

MEMBER:Ian Berry

DATE:13 August 2018

PLACE OF DECISION:  Brisbane

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

· Clause 187.222 of Schedule 2 to the Regulations.

Statement made on 13 August 2018 at 11:59am

CATCHWORDS
Migration – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Requirement to provide evidence of vocational English language ability – 5 year higher education course undertaken in English – Decision remitted with direction

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 5.19(4), Schedule 2, cl 187.222

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 on 9 November 2016 to refuse to grant the visa applicant a Regional Employer Nomination (Permanent) Subclass 187 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 28 July 2016. The delegate refused to grant the visa on the basis that clause 187.222 has not been satisfied because the applicant did not have ‘vocational English’ through having undertaken a prescribed test. The applicant had been requested by the delegate to provide evidence he was a recipient of the Australian Taxation Office’s highest income tax or had studied 5 years of education at secondary or a higher education institution.

3. The applicants appeared before the Tribunal on 9 May 2018 with Mr Parnikov giving evidence, with employer representatives of Driveline Services Australia, Mr Alex Fites, General Manager, and Mr Richard Dorrstein, Corporate Affairs Manager and the applicant’s superior. The applicants were represented in relation to the review by their registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The issue in the present case is the applicant providing evidence he has studied 5 years of secondary education or at a higher education institution in the medium of English.

6. The applicant did not have a passport such that he did not need to prove his English ability. The applicant is a Russian citizen who did complete 2 IELTS tests on 24 March 2018, which post-dated the making of his visa application by some 3 years and the earlier IELTS test dated 12 July 2012 predated the visa application lodgement on 28 July 2016. For both test results, the applicant achieved a minimum score of at least 5 in each of the disciplines and an overall band score of 6.

7. The Management of Driveline Services Australia Pty Ltd attended the hearing in support of the applicant. He was described as an excellent employee whose loss would have a material impact on the business.

8. In submissions, it was argued the applicant was, and had undertaken full time training at his place of employment. The duration was 5 years and the course of study was full time at a higher education institution within Driveline Services Australia Pty Ltd. The Tribunal does not accept that the employer was a higher education institution or that the study was for 5 years full time. Nor does the Tribunal accept that an OECD definition of higher education institution assists the applicant’s case.

9. The applicant has been able to secure a certificate from his Russian higher education institution. A summary of the ‘Extract translation of an Archived certificate’ dated August 2018 is:

   ·The applicant studied at the Kamchatsky branch of the Far Eastern Institute of Fishery from 1984 to 1991.

   ·His first year into the Institute was on a full time basis with specialisation in ‘Operation of Vessels’ Power Plants’.

   ·He was granted academic leave for military service from 20 June 1986 to 1 July 1988.

   ·On 30 June 1991, the applicant completed the fifth year of the course by successfully completing and passing tests and final exams an completed the Diploma Degree assignment. He was awarded a qualification of an ‘Engineer-Mechanic’ with specialisation in ‘Operation of Vessels’ Power Plants’.

10. The certificate stated in the second paragraph:

    ·“In order to training engineering and technical personnel for work in the crew of seagoing ships, engineering and special courses were delivered in the medium of English”.

11. The Tribunal finds the applicant has completed successfully a 5 year higher education Institution course in the medium of English.

12. Given the above findings in respect of clause 187.222(b) of Part 187 of Schedule 2 to the Regulations, the Tribunal finds that the applicant meets the requirements of clause 187.222. The appropriate course is for the visa application be remitted to the Minister to consider the remaining criteria for the visas.

    DECISION

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

    ·Clause 187.222 of Schedule 2 to the Regulations.

    Ian Berry
    Member