1509119 (Migration)

[2016] AATA 3049

1509119 (Migration) [2016] AATA 3049 (19 January 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mrs Senanie Kurukularatne

VISA APPLICANTS:  Mr Thilak Dhammika WITHANAGE
Mrs Kalyana Srimathie Priyabhashinie KUMARADHARMASENA
Miss Sinadi Dahamsa WITHANAGE
Mr Kavinu Lewmitha WITHANAGE
Miss Vinuli Kavithma WITHANAGE

CASE NUMBER:  1509119

DIBP REFERENCE(S):  CLF2008/64614

MEMBER:Mary Cameron

DATE:19 January 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled — Designated   Area-sponsored (Provisional) (Class UZ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) visa:

·cl. 496.226 of Schedule 2 to the Regulations.

Statement made on 19 January 2016 at 10:38am

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 19 May 2015 to refuse to grant the visa applicant a Skilled - Designated Area-sponsored (Provisional) (Class UZ) Subclass 496 visa under s.65 of the Migration Act 1958 (the Act).

2. The visa applicant applied for the visa on 31 August 2007. The delegate refused to grant the visa on the basis that the first named visa applicant (the applicant) did not satisfy cl.496.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not meet the English language proficiency requirement.

3. The review applicant applied to the Tribunal for review of the delegate’s decision.

   RELEVANT LAW

4. The Skilled - Designated Area-sponsored (Provisional) (Class UZ) contains only one subclass: 496 (Skilled — Designated Area-sponsored (Provisional)) found in item 1226(4) of Schedule 1 to the Migration Regulations 1994 ('the Regulations').

5. The criteria for a Subclass 496 (Skilled - Designated Area-sponsored (Provisional)) visa are set out in Part 496 of the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is applying for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

6. A primary criterion to be met at the time of decision is cl.496.226, which states that:

   Either the applicant has vocational English, or:

   (a)  he or she has proficiency in English of at least the standard required for the award of 10 points for the language skill factor of the general points test specified in item 6311 of Schedule 6; and

   (b)  his or her sponsor lives in a State or Territory specified by an instrument in writing for this paragraph as a State or Territory in which arrangements are established for suitable English-language training for applicants to whom this paragraph applies; and

   (c)  the Minister is satisfied that the applicant has paid any fee or charge for that training. 

7. Regulations 1.15B(3) and (4) provide that, if a person applies, on or after 1 July 1999 but before 1 July 2012, for a visa (other than a General Skilled Migration visa), a criterion for the grant of which is that the person has vocational English, the person has vocational English if either;

   ·the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 components of reading, writing, speaking and listening in a test conducted not more than 12 months before the date of application or during the processing of the application: r.1.15B(3); or

   ·the person does not have an IELTS test score in a test conducted not more than 12 months before the date of application or during the processing of the application, and the Minister determines that it is not reasonably practicable or not necessary for the person to be tested using the IELTS test and is satisfied that the person is proficient in English to a standard that is not less than the standard required under r.1.15B(3) (ie. a standard equivalent to 5 in each of the 4 areas): r.1.15B(4).

8. Cl.496.226 may also be satisfied if the visa applicant has a proficiency in English of at least the standard required for the award of 10 points for the language skill factor of the general points test specified in item 6311 of Schedule 6 and his sponsor lives in a State or Territory specified by an instrument in writing for this paragraph as a State or Territory in which arrangements are established for suitable English-language training for applicants to whom this paragraph applies and the Minister (or the Tribunal on review) is satisfied that the applicant has paid any fee or charge for that training.

   CLAIMS AND EVIDENCE

9. On 23 February 2015 the Department requested that Thilak Dhanmika Withanage provide evidence of vocational English. On 15 May 2015 an IELTS test result for Thilak Dhanmika Withanage was provided, dated 30 April 2015, which recorded scores of 3.0 (listening), 3.0 (reading), 3.5 (writing), and 2.0 (speaking).

10. The delegate found that this IELTS test result was not sufficient to meet the statutory definition of vocational English and on that basis, the delegate found the applicant did not meet cl.496.226(c) and, therefore, cl.496.226.

    FINDINGS AND REASONS

11. The Tribunal finds that there is no evidence before it that in a test conducted not more than 12 months before the day on which the application was lodged or during processing of the application, the applicant achieved an IELTS score of at least 5 for each of the 4 test components of speaking, reading, writing and listening. It follows that the Tribunal is not satisfied that the applicant possesses 'vocational English' as defined under r.1.15B(3).

12. However, the Tribunal accepts from the applicant's IELTS test undertaken on 20 October 2015 (Tribunal file, f.21) that he has proficiency in English of at least the standard required for the award of 10 points for the language skill factor of the general points test specified in item 6311 of Schedule 6, given that the overall band score of his test was 4.5. The applicant therefore meets the requirements of cl.496.226(a).

13. The review applicant lives in Victoria. The Tribunal accepts that the applicant's sponsor (the review applicant) lives in a State or Territory specified by an instrument in writing for this paragraph as a State or Territory in which arrangements are established for suitable English-language training for applicants to whom this paragraph applies: IMMI 09/124. The applicant therefore meets the requirements of cl.496.226(b).

14. The Tribunal also accepts from a recent letter from AMES, dated 19 November 2015 (Tribunal file, f.37), that the applicable training fee has now been paid and, accordingly, the applicant satisfies the requirements of cl.496.226(c).

15. It follows from the above that the applicant satisfies the requirements of cl.496.226 in its entirety.

    DECISION

16. The Tribunal remits the applications for Skilled — Designated Area-sponsored (Provisional) (Class UZ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) visa:

    ·cl.496.226 of Schedule 2 to the Regulations.

    Mary Cameron
    Member