Ye (Migration)

[2019] AATA 6169

Ye (Migration) [2019] AATA 6169 (11 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Gemao Ye
Mrs Meiqin Chen
Mr Binghong Ye

CASE NUMBER:  1919781

HOME AFFAIRS REFERENCE(S):           BCC2018/4712871

MEMBER:Katie Malyon

DATE:11 October 2019

PLACE OF DECISION:  Sydney

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

The Tribunal does not have jurisdiction in relation to the third named applicant.

Statement made on 11 October 2019 at 4:59 pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – English language proficiency – competent English – no evidence of undertaking specified English language tests – member of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), r 1.15C, 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 Home Affairs 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 26 October 2018.  At the time of application, Class RN contained only one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. 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 2 alternative visa streams: the Temporary Residence Transition stream; or, the Direct Entry stream.

4. In the present case, the first named applicant - Chinese national Mr Gemao Ye - is seeking the visa in the Temporary Residence Transition stream to work in the nominated position of Agricultural Technician ANZSCO 31111 with his nominator and current employer Green Leaf Australia Group Pty Ltd based at Clybucca .

5. The delegate refused to grant the visas on the basis Mr Ye did not meet cl.187.222 of Schedule 2 to the Regulations because he did not demonstrated that he had, at the time of the application competent English and no evidence was provided to demonstrate that he was exempt from the need to meet the competent English language requirement.

6. Mr Ye appeared before the Tribunal on 9 October 2019 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.  The applicants were represented in relation to the review by their registered migration agent, who did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

   English language proficiency

8. Clause 187.222 of Schedule 2 to the Regulation requires that, at the time the visa application is made, the primary applicant in the Temporary Residence Transition stream must either:

   (a)have ‘competent English’; or,

   (b)be in a class of persons specified by the Minister in a legislative instrument.

9. The term ‘competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ if they:

   ·     undertook a specified language test in the 3 years preceding the visa application and achieved a specified score; or

   ·     holds a specified passport.

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

10. The class of persons specified by the Minister for the purposes of cl.187.222(b) of the Regulations is set out in IMMI 18/045.

    Issues

11. It follows that the issues to be determined in this case are whether, at the time of lodgement of the visa application, the applicant:

    1)has ‘competent English’; or,

    2)is in a class of persons specified in the relevant instrument, IMMI 18/045.

    Consideration

    Does the applicant have competent English?

12. At the hearing, the Tribunal put to Mr Ye that he had not provided either the Department or the Tribunal with evidence of undertaking any of the specified English language tests.  He concurred with the Tribunal’s       observations in this regard. 

13. Mr Ye also concurred with the Tribunal’s observation that it is evident, based on documentation in the Department’s file that he holds a Chinese passport and, further, that China is not one of the 5 countries specified in IMMI 15/005 (being the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland).  

14. Based on this evidence, the Tribunal finds that Mr Ye does not meet the requirements of having ‘competent English’ as defined in r.1.15C of the Regulations. Therefore, cl.187.222(a) of Schedule 2 to the Regulations is not met.

    Is the applicant in a class of persons specified in the relevant instrument?

15. Item 10 of IMMI 18/045 provides that, for the purposes of cl.186.222(b) and, relevantly, cl.187.222(b) of Schedule 2 to the Regulations for Subclass 186 and Subclass 187 visas in the Temporary Residence Transition stream, the following class of persons is specified as exempt from the ‘competent English’ requirement:

    Persons who, at the date of visa application, have completed a minimum of five years of full-time study in a secondary or higher education institution where all the tuition was delivered in English.

16. At the hearing, Mr Ye confirmed that he has not completed at least 5 years full time study in a secondary or higher education institution where all tuition was delivered in English. In the circumstances, he concurred with the Tribunal’s observation that it is evident cl.187.222(b) of Schedule 2 to the Regulations is not met.

    Conclusion

17. As the Tribunal has found that Mr Ye does not satisfy either cl.187.222(a) or cl.187.222(b) of Schedule 2 to the Regulations, it therefore finds that cl.187.222 of Schedule 2 to the Regulations is not met.

18. Mr Ye 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 stream, the Direct Entry stream.  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.

19. The application of the second named applicant – Mr Ye’s wife, Mrs Meiqin Chen - is based on her being a member of the family unit of a person who meets the primary criteria for grant of the visa.  As Mr Ye does not meet the primary criteria, the Department’s decision to refuse Mrs Chen’s application must also be affirmed.

20. As discussed with Mr Ye during the course of the hearing, Departmental records indicate that, at the time of lodgement of the visa applicant and the time of the delegate’s decision as well as at the time of lodgement of the review application, the third named applicant – Mr Ye’s son, Mr Binghong Ye – was not in Australia: he was outside the migration zone.  Mr Ye acknowledged the Tribunal’s observations and its statement that, as a result, the Tribunal does not have jurisdiction in respect of the third named applicant.

    DECISION

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

22. The Tribunal does not have jurisdiction in relation to the third named applicant.

    Katie Malyon

    
    Member