1511871 (Migration)

[2015] AATA 3836

1511871 (Migration) [2015] AATA 3836 (8 December 2015)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Siteri Ekevati
Mr Mosese Raisili Vulimainiusiladi Ekevati
Miss Sereana Raisili Ekevati
Miss Miliakere Ekevati

CASE NUMBER:  1511871

DIBP REFERENCE(S):  BCC2015/644570

MEMBER:Bruce MacCarthy

DATE:8 December 2015

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 08 December 2015 at 11:28am

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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 February 2015. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, but 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 visas on 21 August 2015 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicant appeared before the Tribunal, in a telephone conference, on 8 December 2015 to give evidence and present arguments. 

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. At the hearing, the applicant confirmed that only she was seeking to satisfy the primary criteria for the grant of the visa.  In these circumstances, the outcomes of the applications by the other 3 applicants depends upon the outcome of her application.

2. 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.

3. 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.

4. The relevant instrument is IMMI 15/005.  For r.1.15C(1)(a) and (c), the Minister specified five language tests and scores:

   (i)an International English Language Test System (IELTS) test and an IELTS test score of at least 6 for each of the 4 test components;

   (ii)an Occupational English Test (OET), and an OET test score of at least ‘B’ in each of the 4 test components;

   (iii)a Test of English as a Foreign Language Internet-based Test (TOEFLiBT) and a TOEFLiBT test score with at least the following scores in the 4 test components: 18 for speaking, 13 for reading, 21 for writing and 12 for listening; or

   (iv)a Pearson Test of English Academic (PTE Academic) and a PTE Academic test score of at least 50 in each of the 4 test components; or

   (v)a Cambridge English: Advanced (CAE) test (also known as Certificate in Advanced English) and a Cambridge English: Advanced (CAE) test score of at least 169 in each of the 4 test components.

5. In her application for the visa, the applicant said that she had not undertaken an English language test in the previous 36 months.  She confirmed this at the hearing.  Given this evidence, the Tribunal finds that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(1).

6. In the application for the visa, the applicant said she is a citizen of Fiji and holds a passport of that country.  She also said that she did not hold any other passport.  She confirmed this at the hearing.  As Fiji is not one of the countries specified in IMMI 15/005 for the purposes of  r.1.15C(2), the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(2).  It follows that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(2).  It follows from this finding, and the finding in the previous paragraph, that that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C. 

7. 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 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 decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Bruce MacCarthy
Member