1506244 (Migration)

[2015] AATA 3610

1506244 (Migration) [2015] AATA 3610 (9 November 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss MABLE MWILA

CASE NUMBER:  1506244

DIBP REFERENCE(S):  BCC2015/420

MEMBER:Mary Cameron

DATE:9 November 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 09 November 2015 at 12:30pm

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 1 January 2015. 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 22 April 2015 because the applicant did not have the required English language proficiency.

4. The applicant sought review of the delegate's decision on 7 May 2015. A copy of the delegate's decision accompanied the review application.

5. On 22 September 2015 the Tribunal wrote to the applicant inviting her to participate in a hearing on 20 October 2015. The applicant was asked, within 7 days of receipt of the letter, to provide all documents she intended to rely on to establish that they met the criteria for the visa.

6. The letter noted that the applicant had not yet presented evidence that she met the English language proficiency requirement of competent English, the details of which were set out in the letter.

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

8. The applicant was represented in relation to the review.

9. The Tribunal explained the requirements of cl.485.212 and the definition of competent English at r.1.15C of the Regulations as at the date of application, namely 1 January 2015. In response to the Tribunal's questions, the applicant indicated that:

• She understood the Tribunal's explanation of the criteria it would be considering;

• She holds a passport from Zambia only;

• She lodged her application on 1 January 2015 and when she received the decision refusing the visa, she had wanted to undertake another IELTS test.

• She sat another IELTS test on 31 January 2015 in which she did not achieve competent English.

1. The Tribunal explained the requirement that the applicant must have had competent English at the time that the applicant applied for the visa as the English language test result must accompany the visa application.

2. 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. 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(2) is not met.

4. For r.1.15C(1)(a) and (c), the Minister specified the following  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. IMMI 15/005 introduced the Test of English as a Foreign Language Internet based Test (TOEFLiBT) and the Pearson Test of English Academic (PTE Academic). In addition, for applications lodged from 1 January 2015 a further test, the Cambridge English Advanced Test (also known as Certificate in Advanced English (CAE), was included as a further possible way to demonstrate competent English

5. The delegate’s decision indicates that on the application form the applicant lodged on 1 January 2015, the applicant answered “no” the question “Have you undertaken an English test within the last 36 months”.

6. Subsequently, on 6 March 2015 and on 1 April 2015 the applicant provided an IELTS test result for a test taken by the applicant on 31 January 2015.  However, the applicant did not achieve a score of 6.0 for each of the 4 test components.  At the Tribunal hearing, the applicant conceded that she did not have competent English when she applied for the visa. 

7. In light of this evidence, the Tribunal is satisfied that the application, when made, was not accompanied by evidence that the applicant had competent English, as defined in r.1.15C(1).

8. 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, she 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 in respect of the applicant will be affirmed

DECISION

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

Mary Cameron
Member