1505405 (Migration)

[2015] AATA 3886

1505405 (Migration) [2015] AATA 3886 (14 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Singh

CASE NUMBER:  1505405

DIBP REFERENCE(S):  BCC2011/182511

MEMBER:Don Lucas

DATE:14 December 2015

PLACE OF DECISION:  Melbourne

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

Statement made on 14 December 2015 at 6:58am
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 16 April 2011. 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 23 May 2012 because the applicant did not have the required English language proficiency. The applicant has only sought to rely upon the results of an IELTS test which requires a score of at least six in all four test components.

4. The applicant initially applied to the Tribunal on 7 June 2012. The Tribunal, differently constituted, affirmed the delegate’s decision on 25 September 2013, in view of the applicant’s ongoing failure to provide the results of competent English language as defined in r.1.15C for the purposes of cl.485.215.

5. Following an application for judicial review, the Court by consent ordered that the application be remitted to the Tribunal for further consideration. The terms of the consent order reflected an agreement that the Tribunal’s initial decision was affected by jurisdictional error in that the Tribunal had failed to have regard to medical evidence provided by the applicant concerning a request for an adjournment of the hearing scheduled in the first review. The matter is accordingly before the Tribunal pursuant to those orders by consent made on 10 April 2015.

6. A hearing was conducted in the present review on 29 May 2015 in order for the applicant to give evidence and present arguments. At the time of the hearing, the applicant did not have evidence of requisite English language proficiency, his most recent IELTS test undertaken on 22 November 2014 showing the following results:

   Listening         5.5
   Reading          5.0
   Writing            5.0
   Speaking        5.5.

7. At the time of the hearing, the applicant was awaiting the results of an IELTS test which he had sat on 16 May 2015. The Tribunal accordingly indicated it would await the provision of results of this test by 8 June 2015.

8. On 2 June 2015 the applicant wrote to the Tribunal indicating he was still awaiting the results of his 16 May 2015 test and that he had also booked a further test on 27 June 2015 and requested the Tribunal also await the results of this test. On 12 June 2015 the Tribunal called the applicant asking him to send in the results of the 16 May 2015 test.

9. Following certain further telephone exchanges, on 25 June 2015 the Tribunal wrote to the applicant in the following terms:

   NOTICE OF PROPOSED FINALISATION OF YOUR REVIEW 26 JUNE 2015

   The Tribunal is presently considering finalising your application for review on or after 26 June 2015.

   You will recall that at the hearing conducted on 29 May 2015, you provided evidence that you were awaiting the results of an IELTS test which you undertook on 16 May 2015. The Tribunal allowed you until 8 June 2015 to provide the results of this test. The Tribunal made it clear to you that in the event that you did not achieve the required score in that test, you should still provide evidence of the result, as this would assist the Tribunal to determine whether it was appropriate to allow you further time to sit another test. You indicated that you understood this.

   On 2 June 2015 you wrote to the Tribunal indicating it was still awaiting the result of the 16 May 2015 test. You attached the results of previous IELTS test undertaken by you on 12 February 2011 and 22 November 2014, in which you had failed to achieve the required score. You also advised the Tribunal that you proposed to book another test on 27 June 2015 and requested the Tribunal to await the outcome of this test.

   On 23 June 2015 you contacted the Tribunal advising that you had also sat another test on 30 May 2015. On this occasion, the Tribunal officer with whom you spoke requested you to provide the results of the 16 May 2015 test and the 30 May 2015 test. You confirmed that you would do so. However to date nothing has been received from you.

   In order to exercise its discretion to continue to defer your review, to allow you to provide the results of the further test to be undertaken by you on 27 June 2015, it is very relevant for the Tribunal to have regard to the results of the most recent tests you have undertaken. As explained to you at the hearing, your particular scores in an unsuccessful test showing how close you may be to achieving the required score, will assist the Tribunal in determining whether there is any function in continuing to adjourn the review.

   Your failure to provide evidence of your most recent tests, despite requests by the Tribunal for you to do so, is noted.

   At this stage, the Tribunal proposes to finalise your review on 26 June 2015.

   Should you wish to provide evidence of your results for the 16 May 2015 test and the 30 May 2015 test, in order for the Tribunal to consider deferring the review any further, you should do so immediately.

10. On 26 June 2015 the applicant forwarded evidence of booking for an IELTS test on 27 June 2015. On the same day, the applicant provided the results of three further IELTS tests:

9 May 2015	16 May 2015	30 May 2015
Listening	5.5	5.0	5.5
Reading	5.0	5.0	5.5
Writing	4.5	4.0	5.0
Speaking	6.0	4.5	6.0

1. On 26 June 2015, the Tribunal wrote to the applicant indicating that it would allow until 21 July 2015 for the applicant to provide results of the 27 June 2015 test.

2. On 20 July 2015 the applicant forwarded results for an IELTS test undertaken on 4 July 2015 in which the applicant had achieved the following results:

   Listening         6.5
   Reading          6.0
   Writing            5.5
   Speaking        6.0

3. The applicant requested an eight week period for the purposes of seeking a re-mark of this most recent test. On 27 July 2015, the Tribunal indicated it would await re-marking of this test until 14 September 2015.

4. On 11 September 2015 the applicant wrote to the Tribunal requesting a further four weeks on the basis of a further test scheduled for 26 September 2015, indicating that the re-marking had been unsuccessful.

5. On 17 September 2015 the Tribunal wrote to the applicant indicating as follows:

   The presiding member has carefully considered your request that the Tribunal await a further IELTS test you intend to undertake on 26 September 2015.

   On this occasion, the Tribunal will await the results of this test to be provided by no
   later than the close of Tuesday 20 October 2015. In view of the history of your
   English language testing, the Tribunal will not be inclined to allow any further time for
   re-marking or for further tests to be sat beyond the 26 September 2015 test.

   You should provide the results by the time specified, whether or not they are at the
   required score. The Tribunal will make its decision on or shortly following 21 October 2015 on the basis of the material on file at the time.

6. On 19 October 2015 the applicant provided results of a test undertaken on 19 September 2015 showing the following results:

   Listening         6.0
   Reading          8.0
   Writing            5.5
   Speaking        5.5.

7. The applicant provided evidence of a re-marking request in relation to this test together with a medical certificate dated 14 September 2015 indicating that the applicant was suffering from a speech impediment (stutter) exacerbated by stress. The applicant also provided evidence of a further test to be undertaken on 24 October 2015, indicating that the most recent re-making request had also been unsuccessful.

8. On 22 October 2015 the Tribunal sent its last correspondence to the applicant prior to this decision being made. The correspondence stated:

   The presiding member has considered your request that the Tribunal await remarking your IELTS test from 19 September 2015 and/or a further IELTS test to be undertaken on 24 October 2015.

   After careful deliberation, and notwithstanding the number of extensions already
   granted, the Tribunal has decided to allow you one further and final extension of time,
   being a period of eight weeks from the date of your remarking request made on 16
   October 2015 and ending on 11 December 2015.

   The Tribunal will accordingly proceed to finalise your review after 11 December 2015
   on the basis of the evidence before it at the time.

   In view of the number of extensions already granted to you in relation to obtaining
   evidence of competent English, the Tribunal indicates it will not be inclined to grant any further extension of time beyond 11 December 2015.

9. On 10 December 2015 the applicant provided the results of an IELTS test undertaken on 21 November 2015 indicating the following scores:

   Listening         6.0
   Reading          7.0
   Writing            5.5
   Speaking        6.0.

10. The applicant requested a further deferral of the Tribunal’s decision for an 8 week period. The applicant also provided a medical certificate indicating that he had been unfit to work 19 November 2015 to 20 November 2015 inclusive. The applicant also attached evidence concerning a re-mark request for the 21 November 2015 test. In addition, the applicant provided evidence of a further IELTS test scheduled to be conducted on 9 January 2016. No evidence of any re-marking outcomes was provided or even referred to in the applicant’s most recent submission.

11. Having now received the applicant’s most recent submission, the Tribunal has determined that it should now proceed to a decision. In making this determination, the Tribunal is mindful of the fact that it has provided multiple opportunities for the applicant to undertake an IELTS test and achieve the requisite score.

12. The Tribunal acknowledges that the applicant has been diligent and persistent in his attempts to achieve the requisite score of six in all four components of the IELTS test. Regrettably, although the applicant has on different occasions achieved a score of six or more in three of the four components being Listening, Reading and Speaking, on no single occasion has the applicant ever achieved the requisite score of six in the writing component. This is despite multiple opportunities to re-sit the test, including several instances of unsuccessful requests for the test results to be re-marked. The Tribunal does not consider the applicant’s most recent medical evidence concerning the November test to be material in this regard, in view of the applicant’s historical incapacity to ever achieve the requisite score at least in this Writing component. The other medical evidence concerning a speech impediment does not appear to be a matter affecting writing capacity, and the Tribunal notes that on several occasions the applicant has been able to achieve the requisite score of six in the speaking component notwithstanding this apparent incapacity.

13. By reason of the foregoing and having careful regard to the protracted history of this matter, in an application that was originally made to the Department on 16 April 2011 and refused by the Department on 23 May 2012 by reference to the applicant’s failure to satisfy the same English language criteria currently in contention before the Tribunal, and having regard to the multiple opportunities provided by this Tribunal in the present review for the applicant to demonstrate English language proficiency, the Tribunal does not consider it reasonable to continue to defer its decision pending either a further test or a further re-marking request.

14. 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 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. In the present case, 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. As noted above, the applicant has only ever sought to rely upon the results of an IELTS test. Despite multiple attempts at the test, on no single occasion has the applicant achieved the required score of six in all of the four components, noting that neither has the applicant ever achieved the required score of six in the writing component.

5. The Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

CONCLUSIONS

1. On the basis of the above, the applicant does not meet the requirements of cl.485.215 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 485 visa. 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.

Don Lucas
Member