Sieurin (Migration)

[2019] AATA 1425

Sieurin (Migration) [2019] AATA 1425 (3 January 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Germain Claude Sieurin

CASE NUMBER:  1721888

HOME AFFAIRS REFERENCE(S):           BCC2017/133269

MEMBER:Wan Shum

DATE:3 January 2019

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 03 January 2019 at 11:54am

CATCHWORDS

MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – position of Other Sports Coach or Instructor – competent English – specified language test scores in the three years preceding the visa application – alternative scores benchmarked against the IELTS bandscale – letter of support from employer – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 187.232; r 1.15

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) Subclass 187 (Regional Sponsored Migration Scheme) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the Subclass 187 visa on 11 January 2017. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (the Regulations). 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.

3. In the present case, the applicant is seeking the visa in Direct Entry stream, to work in the nominated position of Other Sports Coach or Instructor.

4. The delegate refused to grant the visa because he did not provide evidence of having competent English at the time of application. Nor was he a specified person such that he was exempt from meeting the English language criteria. The delegate found that the applicant did not meet cl.187.232 of Schedule 2 to the Regulations

5. The applicant appeared before the Tribunal on 12 December 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has the required level of English language proficiency for the visa applied for.

8. At the time this visa application was made, an applicant in the Direct Entry stream must have competent English: cl.187.232(a). The alternative of being in a class of persons specified by the Minister (cl.187.232(b)) could not be met as there is no legislative instrument that applies.

9. ‘Competent English’ is defined in r.1.15C of the Regulations and, for an application made on or after 1 January 2015, provides that a person has ‘competent English’ if the person has achieved the specified score in one of the specified language tests conducted in the 3 years immediately before the day on which the person was invited to apply or the application was made (r.1.15C(1)); or holds a passport of a type specified by the Minister (r.1.15C(2)). The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005.

10. For r.1.15C(1), the relevant tests include the International English Language Testing System (IELTS) test, and the specified score is at least 6 for each of the 4 test components.

11. For r.1.15C(2), the relevant passports are a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

12. In the present case, the applicant does not hold a passport issued by any of those countries and thus cannot satisfy r.1.15C(2).

13. In relation to r.1.15C(1), the applicant told the Tribunal at the hearing that when his employer had agreed to sponsor him, they had talked about the Subclass 457 visa for which he had the required level of English proficiency. The applicant sat the IELTS test and achieved the minimum score required for the 457 visa. But, he did not double check when making the Subclass 187 application and this was his mistake. The applicant referred to the OET test requiring a minimum of B in each test component, and that some of his scores in the IELTS test were considered equivalent to the score of B in the OET test according to information set out on the department’s website regarding ‘Alternative scores as benchmarked against the IELTS bandscale’. An extract is copied into his written submission, which shows that the score of B is specified for the definitions of vocational, competent and Proficient English. The equivalent IELTS tests scores are 5, 6 and 7 in each test component respectively. However, the Tribunal considers that the definition of competent English in r.1.15C requires the person to sit one of the specified tests and achieve the minimum score specified for the test that was undertaken. There is no provision for substituting his results from the IELTS test to one of the other language tests to find that he would meet the definition of competent English. In any case, he achieved a 4.5 in one of the test components, and there does not appear to be an equivalent acceptable score under the OET test. While the Tribunal acknowledges that the score of B in an OET test encompasses a broader range of scores when compared to the IELTS test, the only test that the applicant undertook in the 3 years prior to the invitation to apply was an IELTS test on 19 November 2016. In that test, he achieved a 4.5 in Listening, 5.0 in Reading and Writing and 6.0 in Speaking. This is less than the required minimum scores in each test component of 6.

14. The applicant has provided a letter of support from his employer, Kerry Wheldon, owner/director of Coffs Skydivers, which specifically addresses his English language competency which the Tribunal has considered. It refers to the improvement in the applicant’s English and the applicant having recently passed a number of tests to become a qualified tandem and AFF skydive instructor. It has also considered the letters of support from a skydiving instructor and the chief instructor of Coffs Skydivers. However, while the Tribunal accepts that the applicant’s level of English is considered sufficient for the occupation that he has been nominated for by both his employer and others in the industry, it is unable to find that he meets the definition on the information contained in the letters. The definition can only be met if one of the specified tests has been undertaken in the 3 years prior to the invitation, and the minimum specified score achieved, or if one of the specified passports is held. The Tribunal has no discretion in the matter.

15. The applicant has not provided evidence that he has achieved the specified score in a specified test in the 3 years before the application. As the applicant holds a passport of France, which is not of a type specified by the Minister, he does not meet the requirements of r.1.15C.

16. He therefore does not have competent English as defined in r.1.15C. There is no specified class of exempt applicants and the Tribunal finds that he does not satisfy cl.187.232.

17. 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 stream. 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

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

    Wan Shum
    Member