Yelturk (Migration)

[2017] AATA 1599

Yelturk (Migration) [2017] AATA 1599 (23 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Alper Yelturk

CASE NUMBER:  1614162

DIBP REFERENCE(S):  BCC2015/3394195

MEMBER:Catherine Carney-Orsborn

DATE:23 August 2017

PLACE OF DECISION:  Brisbane

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

Statement made on 23 August 2017 at 1:12pm

CATCHWORDS

Migration – Regional Employer Nomination (Permanent) (Class RN) – Subclass 187 (Regional Sponsored Migration Scheme) – Temporary Residence Transition stream – Position of Apiarist – Vocational English requirement – Not undertaken 3 years before application – Contribution to the regional community and business – Business expansion plan – Referred for Ministerial intervention

LEGISLATION

Migration Act 1958, s 65

Migration Regulation 1994, Schedule 2, cl 187.222, 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 to refuse to grant the applicant a Regional Employer Nomination (Permanent) (Class RN) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied to the Department of Immigration for the visa on 18 November 2015. 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 three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Agreement stream.

4. In the present case, the applicant is seeking the visa in Temporary Residence Transition stream, to work in the nominated position of Apiarist. This stream is designed for Subclass 457 visa holders who have worked for their employer for at least the past two years, and that employer has offered them a permanent position in the same occupation.

5. The delegate refused to grant the visa because the applicant did not meet cl.187.222 of Schedule 2 to the Regulations because he did not satisfy the English requirement.

6. The applicant appeared before the Tribunal on 23 August 2017 to give evidence and present arguments. The Tribunal also received oral evidence from Ms Harris and Mr Finnis. The Tribunal hearing was conducted with the assistance of an interpreter in the Turkish and English languages.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at the time of application the applicant had vocational English and therefore meets the criteria in cl.187.222.

   English language proficiency

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have vocational English, or be in a class of persons specified in legislative instrument IMMI12/059.

10. ‘Vocational English’ is defined in r.1.15B of the Regulations. A person will have vocational 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.

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

12. The applicant applied for a Temporary Residence Transition subclass 187 visa on 18 November 2015.

13. With his application he supplied a copy of an IELTS test dated 13/DEC/2014 in which he scored 5.5 for Listening, 4.5 for reading, 5.0 for writing and 5.0 for speaking. 

14. In order to satisfy cl187.222 the applicant was required to provide at the time of application a specified score in the three years before the application; or be in a specified class of exempt persons.

15. Regulation 1.15B(1) provides that a person has vocational English if they undertook a specified language test and achieved a score of at least 5 in each of the four test components of listening, reading, writing and speaking.

16. The applicant undertook an IELTS test which is one of the specified language tests however he scored 4.5 for reading. 

17. The result of above is that he does not satisfy the criteria.

18. The applicant has supplied to the Tribunal a copy of his PAYG payment summary for the year ending 2015.  This indicates he earned $49,563 for the year ending 2015.

19. He supplied a letter of support from his local member.  A letter of reference from his landlord’s agent, letter of support from Mr Finnis and a letter of support from his employer.

20. The applicant supplied submissions in relation to his work in Australia and his English language abilities.

21. The Tribunal took evidence from the applicant and witnesses at the hearing.

22. The applicant provided witnesses/referees who know him and have worked with him.  They both gave testimonies in writing and confirmed their statements at hearing.

23. The Tribunal explained the issue for the Tribunal’s consideration was whether he met the English requirement at time of application.  The Tribunal further explained that it did not have discretion to waive that requirement.

24. The applicant came to Australia in 2011 and has worked as an Apiarist for the same employer since that time.  He and his witnesses gave evidence in relation to his English abilities. 

25. The Tribunal explained that for the permanent subclass 187 visa it was necessary for the English criteria to be met in the three years prior to the time of application. The only relevant English test which was provided within that time frame showed the applicant achieved a score of 4.5 for reading.  For the relevant regulation to be met he needed a score of 5 in each of the four test components.  No other English language tests in the relevant time period referred to above were provided.

26. The Tribunal went through the exemptions at the hearing.  The applicant confirmed he does not hold a passport from any of the exempt countries.  He is not a Minister of Religion and was educated in Turkey.  His earnings are less than the specified amount.    On the evidence before it the Tribunal finds that the applicant is not in a specified class of exempt persons as set out in the regulations.

27. Therefore, cl.187.222 is not met.

28. 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.

29. The applicant at the hearing was unrepresented.

30. The Tribunal accepts that he has been an asset to the regional community he is working and living in since 2011.   The applicant’s employer states in his written statement that the applicant has been an asset to his business.  He states that due to the applicant his honey production has exceeded all expectations and they are producing $200,000 worth of honey each year.  He further states that there will be adverse effects to his business if the applicant returns to Turkey.  His employer states that they are planning to increase the number of hives and expand the business however they cannot do this without the applicant’s expertise as an Apiarist. 

31. Having regard to the applicant’s circumstances, in particular the economic benefit he is contributing to a regional area in Australia and having considered the ministerial guidelines relating to the Minister’s discretionary power under s.351, set out in the Department’s Procedures Advice Manual (PAM3) the Tribunal considers this case should be referred to the Department to be brought to the Minister’s attention.

    DECISION

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

    Catherine Carney-Orsborn
    Member