1508053 (Migration)

[2016] AATA 4090

1508053 (Migration) [2016] AATA 4090 (13 July 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jabez Andia Tilto

CASE NUMBER:  1508053

DIBP REFERENCE(S):  BCC2015/758492

MEMBER:Alan Duri

DATE:13 July 2016

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2016 at 8:42am

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

2. Mr Tilto applied for the visa on 9 March 2015. Visa Class VC contains Subclass 485. 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).

3. The delegate refused the visa on 26 May 2015 because Mr Tilto did not have the required English language proficiency.

4. Mr Tilto appeared before the tribunal on 12 July 2016 to give evidence and present arguments.

5. Mr Tilto confirmed that he holds a Papua New Guinea passport. He is not a citizen or passport holder of any other country.  Mr Tilto also confirmed that he had not done any English language tests in the three years before the visa application.

6. Mr Tilto gave evidence that he was aware that his student visa was ceasing and that he needed to apply for another visa.  He said that there were some administrative problems with the IELTS appointment, which resulted in him not being able to undertake the IELTS test until after the visa application.  Mr Tilto also stated that he was in emotional turmoil in early 2015 because of the death of his younger brother.    

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The question before the tribunal is whether Mr Tilto satisfies cl.485.212 of Schedule 2 to the Migration Regulations. This in turn 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.  Mr Tilto holds a Papua New Guinea passport and accordingly he does not hold a passport of a type specified.  Therefore r.1.15C(2) is not met.  For r.1.15C(1)(a) and (c), the Minister specified various English language tests including an International English Language Test System (IELTS) test.

4. Mr Tilto supplied the department with an IELTS test dated 26 March 2015 indicating that he scored 8.5 for listening. 8.0 for reading, 7.5 for writing and 8.0 for speaking.   

5. However a requirement under r.1.15(1)(bb) is that the English language test must have been conducted in the three years before the visa application.

6. The visa application was lodged on 9 March 2015.

7. There is no evidence or indeed suggestion that Mr Tilto undertook a relevant English language test in the three years before 9 March 2015.     

8. It follows that that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(1).

9. On the basis of the above, Mr Tilto does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore he 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.

Alan Duri
Member