Swanepoel-Trollip (Migration)

[2019] AATA 2842

Swanepoel-Trollip (Migration) [2019] AATA 2842 (25 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Lenard Barend Swanepoel-Trollip
Mr Christiaan Frederick Beyers Swanepoel-Trollip
Miss Tatiana Swanepoel-Trollip

CASE NUMBER:  1814081

HOME AFFAIRS REFERENCE(S):           BCC2017/4550937

MEMBER:Nicola Findson

DATE:25 February 2019

PLACE OF DECISION:  Perth

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

Statement made on 25 February 2019 at 10:58am

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Computer Network and Systems Engineer (ANZSCO 263111) – English language requirement – did not achieve requisite score in IELTS test – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65

Migration Regulations 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 Home Affairs on 2 May 2018 to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 30 November 2017. 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 two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) applied for the visa in Direct Entry stream, to work in the nominated position of Computer Network and Systems Engineer (ANZSCO 263111). 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 Stream.

5. The Tribunal received a review application from the applicants on 15 May 2018, which was accompanied by a copy of the delegate’s decision record.

6. The delegate refused to grant the visas on the basis that the applicant did not meet cl.187.232 of Schedule 2 to the Regulations, because he did not provide evidence that he met the definition of competent English, or was in a specified class of exempt applicants. The delegate noted that the applicant had undertaken a specified English test - an IELTS test - on 8 July 2017, which was in the 3 year period immediately before the day on which the visa application was made. However, the delegate noted that for the purposes of r.1.15C, the relevant written instrument IMMI 15/005 specified that an applicant had to have an IELTS score of at least 6 in each test component but that the applicant had provided an IELTS test result in which he scored less than 6 in two of the four test components. As the applicant had not provided evidence of having achieved the required score in a specified language test at the time of application and was not exempt from having to do so, he did not meet cl.187.232. The delegate refused to grant visas to the second and third named applicants on the basis that they did not meet the secondary visa criteria to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that they met the primary visa criteria in their own right.

7. During the review process, on 27 September 2018, the applicant’s representative provided a written submission and the results of a Pearson Test of English Academic (PTE Academic) test the applicant took on 7 September 2018.  In the submission it was conceded that on the basis of the IELTS test that accompanied his visa application, the applicant did not meet the competent English requirement. However, it was submitted that he had exceeded the required scores in the PTE Academic test undertaken on 7 September 2018, and that on this basis met the English requirement for the grant of his subclass 187 visa.

8. The applicants appeared before the Tribunal on 28 November 2018, to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent.

9. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   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 17/058: 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. The specified passports are a passport of the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland: r.1.15C(2).  The applicant has a passport of the Republic of South Africa.  The applicant therefore does not meet the requirements of r.1.15C(2).

14. At the hearing the Tribunal explained to the applicant the requirements of cl.187.232.  It explained that to meet the requirement the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made.

15. The applicant explained to the Tribunal that despite speaking English and studying courses delivered in English since his arrival in Australia, it had been a struggle for him to achieve the required score.  He indicated to the Tribunal that he had applied for the visa so that he, his partner and their three-year-old daughter (the secondary applicants) did not have to return to their home country of South Africa and could remain safe in Australia. He indicated he was currently working for an IT company in Perth and the second-named applicant was working for a Mental Health non-profit organisation.

16. The Tribunal explained to the applicant that it does not have any discretion to waive the requirement that the applicant meets cl.187.232 and the specifications set out in the relevant instrument.

17. It is not disputed that at the time of lodgement of the subclass 187 visa application on 30 November 2017, the applicant provided an IELTS tests in which he obtained an overall band score of 6, having scored less than 6 in 2 out of the 4 test components in a test undertaken on 20 July 2017.  The Tribunal notes that IMMI 15/005 specifies that for the purposes of ‘competent English’ in r.1.15C, an applicant must score at least 6 in each of the 4 components of an IELTS test.  The applicant’s IELTS test results of 20 July 2017 do not meet this requirement.  The Tribunal notes that the applicant provided to it a PTE Academic test in which he obtained an overall score of 54, which he undertook on 7 September 2018.  However, as discussed with him at the hearing, this test was undertaken after he lodged his subclass 187 visa application and thus does not meet cl.187.232, which requires that he have competent English at the time of the application (that is, on 30 November 2017). 

18. Therefore the Tribunal must find that cl.187.232(a) is not met.

19. For the purposes of cl.187.232(b), written instrument IMMI 17/058 sets out exempt persons who do not have to meet the English language requirements for subclass 187 visa purposes. The Tribunal notes that there are no exemptions specified for cl.187.232(b) Direct Entry stream visa applications made on or after 1 July 2017.  Given this, the Tribunal is satisfied that the applicant is not exempt from the English language requirement.

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.

21. As the Tribunal has found that the applicant does not meet the primary visa criteria for a subclass 187 visa, it must also affirm the decisions to grant the subclass 187 visas to the second and third applicants, as there is no evidence before the Tribunal to indicate that they meet the primary visa criteria in their own right.

    DECISION

22. The Tribunal affirms the decision not to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas

    Nicola Findson

    Member