1504337 (Migration)

[2015] AATA 3373

1504337 (Migration) [2015] AATA 3373 (28 August 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pritpal Singh

CASE NUMBER:  1504337

DIBP REFERENCE(S):  BCC2010/341507

MEMBER:Di Hubble

DATE:28 August 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.215 of Schedule 2 to the Regulations.

Statement made on 28 August 2015 at 6:58pm

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 24 August 2010. At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses: 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). Having regard to the visa application, the relevant subclass in this case is Subclass 485, the criteria for which 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 12 March 2015 because the applicant did not have the required English language proficiency.

4. On 30 March 2015 the applicant sought review of the delegate’s decision.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue before the Tribunal is whether the applicant has competent English as required by cl.485.215. Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Alternatively, a person has competent English if the person holds a passport of a type specified by the Minister (r.1.15C(b)). The relevant instrument is IMMI 15/005.

2. The applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b).

3. For r.1.15C(a)(ii) the Minister has specified a score of at least ‘B’ in each of the four components of an Occupational English Test (OET). Thus, an applicant can satisfy r.1.15C(a) by achieving the specified score in either an IELTS or an OET, in a test undertaken after the application has been made, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417, Habib v MIAC [2010] FMCA 450.

4. On 13 April 2015 the applicant submitted an IELTS test report for a test undertaken by him on 14 March 2015 with the following results:  listening 7.0; reading 6.5; writing 6.0 and speaking 6.0, with an overall band score of 6.5.

5. On 14 April 2015 the Tribunal verified the applicant’s IELTS results via the IELTS test verification service.

6. The Tribunal finds that the applicant does have competent English as defined in r.1.15C(a).

7. On that basis, the applicant meets the requirements of cl.485.215 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   · cl.485.215 of Schedule 2 to the Regulations.

Di Hubble
Member