Ridwan Mase (Migration)

[2022] AATA 4517

Ridwan Mase (Migration) [2022] AATA 4517 (6 December 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr  Ridwan Mase

REPRESENTATIVE:  Ms Eidy Melanie Douglas (MARN: 1573017)

CASE NUMBER:  1930728

HOME AFFAIRS REFERENCE(S):          BCC2019/3545219

MEMBER:P. Maishman

DATE:6 December 2022

PLACE OF DECISION:  Perth

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

Statement made on 06 December 2022 at 2:31pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – temporary residence transition stream – mechanical engineering technician – English language proficiency – competent English – no specified language test taken in 3 years before application made – specified score not achieved in recent test – long employment and ready communication with colleagues – no discretion to disregard requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 187.222(a)

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 applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 16 July 2019. 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 (Cth) (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 the Temporary Residence Transition stream, to work in the nominated position of Mechanical Engineering Technician (ANZSCO 312512).

5. The delegate refused to grant the visa because the applicant did not meet cl 187.222 of Schedule 2 to the Regulations because the delegate was not satisfied that the applicant had the required English language proficiency.

6. Mr Mase appeared before the Tribunal on 6 December 2022 to give evidence and present arguments. Mr Mase described his requested witnesses Mr Paul Rew and Mr Allen Raats as his supervisors who could confirm he was able to speak English for work purposes. The Tribunal declined to take oral evidence from Mr Paul Rew and Mr Allen Raats on the basis they could offer little to support Mr Mase’s application about the issue to be decided.

7. The Tribunal hearing was conducted with the assistance of an interpreter in the Indonesian and English languages.

8. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.

9. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

10. The applicant was represented in relation to the review.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. The Tribunal had before it a copy of the Department’s file. The department’s file contains Mr Mase’s visa application. Mr Mase declared he is an Indonesian citizen and holds an Indonesian passport. Mr Mase declared his highest qualification at that time was an AQF Certificate III. Mr Mase declared he has not completed and is not currently enrolled in any studies at secondary level or above. Mr Mase provided details of employment showing he has been employed in Australia from August 2005 up to the date of application. Mr Mase indicated he had not studied in a secondary and/or tertiary institution where the instruction was in English; he indicated he had not undertaken an English test in the last 36 months; and he said he had at least functional English language ability.

13. The applicant gave the Tribunal a copy of the delegates decision record with his application for review. Mr Mase also gave the Tribunal’s written submissions and documents on 2 November 2022 and 29 November 2022.

14. The issue in the present case is whether the applicant has competent English or was a person in a class specified in the appropriate instrument.

    English language proficiency

15. Clause 187.222 of the Regulations requires that at the time the visa application is made an applicant in the Temporary Residence Transition stream must either have defined level of English language proficiency or be in a class of persons specified in the relevant legislative instrument.

16. The Tribunal notes the submissions repeatedly refer to instrument LIN 19/216. However, Point 9 of Part 3 in LIN 19/216 clarifies that instrument applies in relation to visa applications made on or after 16 November 2019. 

17. Point 12 of Part 4 of IMMI 18/045 says that it applies to an application for a subclass 186 Visa or a subclass 187 Visa made on or after 18 March 2018.

18. Mr Mase’s visa application was made on 16 July 2019.

19. The legislative instrument that applies to visa applications made on 16 July 2019 is IMMI 18/045.

20. However, the relevant provisions in each of the instruments are for the purposes of cl 187.222(b) and are in substantially the same terms.

21. Relevantly Point 2 of Part 7 of LIN 19/216 provides that a ‘class of persons’ specified as exempt from the English language requirement are persons that had, on the day of their visa application, completed at least five years of full-time study in a secondary or higher education institution where all tuition was delivered in English.  

22. Part 10 of IMMI 18/045 provides that persons who, at the date of application, have completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English are specified as exempt from the English language requirement.

23. For visa applications made before 1 July 2017 the level required is “vocational English” and for visa applications made on or after 1 July 2017 the level required is “competent English”.

24. Mr Mase’s application was made on 16 July 2019 and at that time the provisions of cl 187.222(a) required an applicant to have ‘competent English’.

25. The applicant’s representative’s written submission to the Department dated 18 July 2019 claims Mr Mase has no ‘functional English’ but contends he is entitled to be granted the visa because cl 1114C of the regulations provides an applicant could make a second visa application instalment because he did not have functional English. The contention  misconstrues clause 1114C of the regulations and appears to consider the terms ‘vocational English’ and ‘competent English’ to mean the same thing.

26. ‘Vocational English’ is defined in regulation 1.15B and ‘Competent English’ is defined in reg 1.15C of the Regulations. Clause 1114C of the regulation applies to ‘functional English’ and has no application in this case.

27. A person will meet the definition for competent English if they either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score, or

    ·holds a specified passport.

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

29. Mr Mase declared on his visa application that he had not undertaken a language test in the three years preceding his visa application. Mr Mase submitted on 1 November 2022 that he had completed the IELTS (International English language test system test) on 30 October 2022. The applicant’s written submissions dated 29 November 2022 indicate the IELTS result was not at the competent level required.

30. The Tribunal observes cl 187.222(a) requires an applicant to have competent English at the time of application. Even if Mr Mase’s October 2022 IELTS results were at the competent level, they do not apply to the situation as it was when Mr Mase made his visa application and would have been of no assistance to Mr Mase obtaining a favourable outcome.

31. Mr Mace told the Tribunal that he did not undertake a specified language test in the three years preceding the visa application, and the test he undertook on 30 October 2022 did not achieve the specified score.

32. The specified passports are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland to a citizen of that country.

33. Mr Mase told the Tribunal he was the holder of an Indonesian passport and did not hold a passport from any other country.

34. On the evidence before it, the Tribunal finds Mr Mase has not undertaken a specified English language test in the three years prior to the application; obtained the specified English language test scores; and does not hold a passport of a type as specified in IMMI 15/005 at paragraph 5.D; 5.E and 5.F.   

35. Accordingly, Mr Mace does not have competent English as defined in reg 1.15C and do not meet the requirements of cl 187.222(a).

36. Clause 187.222(b) of the Regulations provide an alternative to the requirement to have competent English if they are a person in a class of persons specified in a Ministerial Instrument. The relevant instrument is IMMI 18/045 and specifies a person who has  completed a minimum of five years of full-time study in a secondary or higher education institution where all tuition was delivered in English, to be exempt from the English language requirement.

37. Mr Mase gave the Department copies of his occupational licenses and training transcripts. Mr Mase has obtained a Certificate III in Polymer Processing in 2012; and a Certificate IV in Polymer Technology in 2016. The Tribunal also had regard to documents certifying Mr Mase had attended various training with Global BHP Billiton, Rema Tip Top and Mandurah Safety and Training Service Pty Ltd.   

38. Mr Mase told the Tribunal he has always worked full time and acknowledged none of the courses on the training transcript were undertaken by full time study. Mr Mase said his Certificate III and Certificate IV credentials were obtained while he was employed full time and not achieved from full time study.    

39. There is no evidence before the Tribunal that the applicant has completed a minimum of five years of full time study in a secondary or higher education institution where all tuition was delivered in English. The Tribunal finds the applicant was not a person in a class of persons specified by the Minister in IMMI 18/045 as exempt from the requirement to have competent English.

40. Accordingly, the requirement of cl 187.222(b) is not met.   

41. Therefore, cl 187.222 is not met.

42. The applicant has only sought to satisfy the criteria for a Subclass 187 visa in the Temporary Residence Transition 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 Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

43. The Tribunal acknowledges Mr Mase has been employed in Australia for around 17 years and is able to readily communicate in English with his work colleagues. This will be a difficult outcome for Mr Mase and most likely for his employer. However aside from meeting the exemption allowed in in IMMI 18/045 there is no wider discretion to disregard the requirement to have competent English. 

    DECISION

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

    P. Maishman
    Member