1505865 (Migration)

[2015] AATA 3613

1505865 (Migration) [2015] AATA 3613 (9 November 2015)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Chang Ho Choi
Mrs Kayoung Lee

CASE NUMBER:  1505865

DIBP REFERENCE(S):  BCC2011/609445

MEMBER:Mary Cameron

DATE:9 November 2015

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 09 November 2015 at 3:18pm

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 on 9 April 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 1 December 2011. At the time the visa application was lodged, Class VB contained three subclasses, 885 (Skilled – Independent), 886 (Skilled - Sponsored) and 887 (Skilled – Regional). Having regard to the visa application, the relevant subclass in this case is Subclass 885, the criteria for which are set out in Part 885 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 to grant the visas because the first named applicant (the applicant) did not have the required level of English language proficiency.

4. The applicants, who were represented by a registered migration agent, sought review of the delegate's decision on 30 April 2015. A copy of the decision accompanied the review application. According to the delegate’s decision the first named applicant did not provide satisfactory evidence of competent English with his visa application. He provided a receipt dated 4 November 2011 for an IELTS test to be undertaken on 26 November 2011. The Department sent the applicant several subsequent requests dated 14 June 2013, 3 April 2014, 18 June 2014 and 29 July 2014 to provide evidence of competent English. On 7 September 2014 the applicant advised the Department that he had been unable to obtain a score in an IELTS test to demonstrate that he had competent English, and requested further time to provide evidence of his English language ability.

5. According to the delegate’s decision record, on 31 March 2015 the applicant advised that he had attempted several times to achieve IELTS results of 6 in each test components but had been unable to achieve that result. He also indicated that he had booked a further test on 11 April 2015.

6. On 22 September 2015 the Tribunal wrote to the applicants, through their representative, inviting them to attend a hearing on 30 September 2014.

7. The applicants were asked, within 7 days of receipt of the letter, to return a completed Response to Hearing Invitation form. They were also asked to provide all documents they intended to rely on to establish that they met the criteria for the visa. The letter noted that the applicant had not yet presented evidence that he met the English language proficiency requirement of competent English the details of which were set out in the letter.

8. The applicants appeared before the Tribunal on 20 October 2015 to give evidence and present arguments.

9. The applicants were represented in relation to the review by their registered migration agent.

10. The Tribunal explained the requirements of cl.485.213 and the definition of competent English at r.1.15C of the Regulations as at the date of application, namely 1 December 2011. In response to the Tribunal's questions, the first named applicant indicated that:

    ·He understood the Tribunal's explanation of the criteria it would be considering;

    ·He holds a passport from the Republic of Korea only;

    ·He lodged his visa application on 1 December 2011;

    ·He has worked very hard in his studies and in his various attempts to satisfy the IELTS test requirements, but has been unable to do so because of the stress he experiences when doing the tests. He has achieved the required assessment level of 6 in all of the test components except for the speaking component.

11. The Tribunal explained the requirement that the applicant must have achieved competent English in a test conducted in the two years before the date of the visa application.

12. Subsequent to the Tribunal hearing on 9 November 2015 the applicant wrote to the Tribunal through his registered migration agent stating that it is conceded that the applicant was unable to provide IELTS test scores of 6 for each of the test components of speaking, reading, writing and listening in one test result at the time of the application, however he would like the application to be reconsidered as he achieved 6.0 in each band (Listening 6.5, Reading 6.0, Writing 6.0 and Speaking 6.0) from his latest IELTS test conducted on 24 October 2015. The letter attaches a copy of this IELTS test result.

13. For the following reasons, the Tribunal has concluded that the matter should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. The issue in the present case is whether the applicant has competent English as required by cl.885.213. Regulation 1.15C provides that a person has ‘competent English’ if the person:

    (a)satisfies the Minister that:

    (i)the person undertook a language test, specified by the Minister in writing for this subparagraph; and

    (ii)the test was conducted in the 2 years immediately before the day on which the application was made; and

    (iii)the person achieved a score specified in the instrument; or

    (b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

15. The relevant instrument is IMMI 15/005 In the present case, there is no evidence that the applicant has held a passport of a type specified, and therefore r.1.15C(2) is not met. 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.

16. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such r.1.15C(b) is not met.

17. As set out above the applicant’s evidence is that he has not undertaken a language test in the 2 years immediately before the day on which the visa application was made in which he achieved a specified score:r.1.15C(a).

18. As set out above the applicant has provided the Tribunal with an IELTS test result for a test taken by the applicant on 24 October 2015 in which the applicant achieved a score of at least 6.0 for each of the 4 test components. However, as the applicant conceded in his correspondence accompanying that test result, this test was not conducted in the two years immediately before the application was made.

19. In light of this evidence, the Tribunal is satisfied that the applicant does not have competent English as defined in Regulation 1.15C for the purposes of cl.883.213.

20. The delegate also refused a visa to the secondary applicant, the partner of the visa applicant and who is included in his application.

21. There is no claim or any evidence before the Tribunal that the remaining applicant meets the primary criteria for the grant of the visa. In addition, to meet clause 885.321, the secondary applicant must be a member of the family unit of a person who, having satisfied the primary criteria, is the holder of a subclass 885 visa. As the applicant does not satisfy the primary criteria for a visa Subclass 885, the Tribunal finds that the secondary applicant does not satisfy clause 885.321 and, therefore, the criteria for a subclass 885 visa.

22. On the basis of the above, the applicant does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

23. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Mary Cameron
    Member