1501636 (Migration)

[2015] AATA 3265

1501636 (Migration) [2015] AATA 3265 (11 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Akshay Chaitesh Makoondlall

CASE NUMBER:  1501636

DIBP REFERENCE(S):  bcc2014/133509

MEMBER:Bruce MacCarthy

DATE:11 August 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 11 August 2015 at 2:13pm

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 Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 August 2014. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 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.

3. The delegate refused the visa on 20 January 2015 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 11 August 2015, in a telephone conference, to give evidence and present arguments. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that when the application was made, it was accompanied by evidence that the applicant had competent English.

2. Competent English is defined in r.1.15C.  It provides that:

   (1)A person has competent English if:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the person is an applicant for a visa; and

   (ba)…; and

   (bb)… the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)the person achieved a score specified in the instrument.

   (2)A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

3. The relevant instrument is IMMI 15/005.  For r.1.15C(1)(a) and (c), the Minister specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components.

4. In the application for the visa, the applicant said he was a citizen of Mauritius and held a passport of that country.  He also said that he did not hold a current passport from any of the countries specified for the purposes of r.1.15C(2).  He confirmed this at the hearing. Given this evidence, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(2).

5. In his application, and in oral evidence at the hearing, the applicant said that he had not undertaken an English language test in the previous 36 months.  He later submitted the results of an IELTS test conducted on 6 September 2015, but that test was not conducted in the 3 years immediately before the day on which the application was made. 

6. The applicant referred the Tribunal to the case of Berenguel v MIAC [2010] HCA 8 (Berenguel) which he submitted demonstrated that the construction of r.1.15C is capable of broader interpretation.  However, as discussed with the applicant at the hearing, the Tribunal considers this case to be distinguishable from the circumstances of the present case because it was dealing with a differently worded provision.  In Berenguel, the relevant phrase was ‘in a test conducted not more than 2 years before the day on which the application was lodged’, which the Court held could be satisfied by evidence provided to the Minister after the application had been made. 

7. The definition of ‘competent English’ in r.1.15C (as it was considered by the High Court in Berenguel) was amended by Migration Amendment Regulations 2011 (No. 3) to require that, for applications lodged on or after 1 July 2011, the relevant test in which the specified score must be achieved is a test that “was conducted in the 2 years immediately before the day on which the application was made.” For applications lodged on or after 1 July 2012, the period in question was increased to “the 3 years immediately before the day on which the application was made.” Though the wording of r.1.15C has since been further amended, all subsequent versions (including the version applicable in the present case) have required that the relevant test “was conducted in the 3 years immediately before the day on which the application was made.”

8. The Tribunal considers the plain meaning of the definition in r.1.15C(1)(bb) is unambiguous and precludes it from considering a test undertaken after the visa application was made. According to the explanatory statement accompanying the Migration Amendment Regulations 2011 (No. 3), the amendment was to clarify that a person will have ‘competent English’ “if the Minister is satisfied that the language test undertaken by the person was conducted no more than two years immediately before the day on which the application for a GSM visa was made.” It is further stated that the amendments “ensure that an applicant for a GSM visa is assessed as holding the relevant English language test score before the application for a GSM visa is made. This supports the policy intention that only applicants who are assessed as having the specified English language test score prior to making their application for the GSM visa may satisfy the relevant Schedule 2 criterion.”

9. As the amended definition of ‘competent English’ applies to applications for a General Skilled Migration visa made on or after 1 July 2011, the Tribunal is of the view that Berenguel does not apply to applications for skilled visas made on or after 1 July 2011.  The Tribunal finds that the applicant’s visa application was made on 28 August 2014, and the definition of ‘competent English’ as set out in paragraph 7 above applies to his application.

10. Given that the applicant did not undertake any specified English language test in the 3 years immediately before the day on which the application was made, the Tribunal finds that he does not have competent English as defined in r.1.15C(1).  It follows from this finding and the finding in paragraph 9 above that the applicant does not have competent English as defined in r.1.15C.  The Tribunal is therefore satisfied that the application, when made, was not accompanied by evidence that the applicant has competent English.

11. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa.

12. As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Bruce MacCarthy
Member