1512800 (Migration)

[2016] AATA 4509

1512800 (Migration) [2016] AATA 4509 (12 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Rahul Shiwaji Deshmukh
Mrs Seema Rahul Deshmukh
Miss Simren Rahul Deshmukh

CASE NUMBER:  1512800

DIBP REFERENCE(S):  BCC2011/402468

MEMBER:Alison Mercer

DATE:12 October 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 12 October 2016 at 5:31pm

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions 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 31 August 2011. The delegate decided to refuse to grant the visas on 3 September 2015. 

3. The delegate refused the visa applications on the basis that the first named applicant (the applicant) did not satisfy cl.487.215 in Part 487 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he had not provided evidence of having obtained the required scores in a specified English test undertaken in the 2 years immediately before the visa application was made. The delegate noted that the applicant provided a reference in his online visa application form indicating that he had undertaken an International English Language Testing System (IELTS) test on 2 April 2011, but found that the applicant had not obtained a score of at least 6 in all 4 components (having obtained 5 in the reading component) as required by r.1.15C(a)(iii) (the regulation defining ‘competent English’ for these purposes). The delegate further found that the applicant did not hold a specified passport, which was the alternative way in which to meet the definition of ‘competent English’. As the applicant did not have competent English, he did not meet cl.485.215 and could not be granted a subclass 487 visa. The delegate also refused the visa applications of the second and third named applicants (the applicant’s wife and daughter) on the basis that they did not meet the secondary visa criteria, which required them to be members of the family unit of a person who met the primary visa criteria, and there was no evidence that either of them met the primary visa criteria in her own right.

4. The Tribunal received a review application from the applicants on 17 September 2015.  It was accompanied by a copy of the delegate’s decision.

5. On 6 September 2016, the Tribunal wrote to the applicants by email to invite them to a hearing on 27 September 2016.

6. The applicant attended the hearing on 27 September 2016 and spoke with the Tribunal about the visa applications.  He also provided a written submission, in which he made the following points (in summary):

   ·he arrived in Australia in March 2002 to study, and completed a Certificate III in Commercial Cookery, Certificate III in Patisserie, a Graduate Certificate in Business Administration and a Diploma of Hospitality Management;

   ·he married the second named applicant in 2008 and their daughter was born in Australia in November 2011;

   ·he applied for the subclass 487 visa on 31 August 2011 with the assistance of a migration agent, but was misguided by him as the English proficiency requirements applicable to him.  At the time that the applicant undertook his IELTS test in April 2011, an overall band score of 6 was sufficient (which the applicant achieved) but by the time the visa application was lodged on 31 August 2011, the requirement had changed and the applicant needed to obtain a score of at least 6 in all 4 components of the test (which he had not in the IELTS test in April 2011);

   ·he did not lodged his visa application before this change was introduced in July 2011 because (a) he was unaware that the change was going to occur, and (b) he was waiting on documents for the application to arrive from India.  Once he became aware the English requirements had changed as of 1 July 2011, he contacted his agent and was (incorrectly) advised that he could go ahead with his IELTS test results from 2 April 2011 and did not have to sit another IELTS test;

   ·he trusted the agent’s advice and lodged the visa application with his IELTS results from April 2011 but it took 4 years for the Department to make its decision, which was a refusal on English grounds. He realised that he had been misguided by his agent as to the applicable English requirements.  The refusal of the visas was very stressful for him as he had to look after his family and they had been effectively in limbo for 4 years before the unexpected shock of the refusal;

   ·the applicant undertook another IELTS test on 24 September 2016 but had not yet received the results. He did not know how he would go as he was extremely stressed.  His parents in India were also very worried about his and the family’s future.  The applicant said that he just needed some time to fully prepare to take another test and that he was confident, with sufficient time to prepare, he could score 6 or more in each component of an IELTS or PET English test;

   ·he came from a well-educated family.  His parents were highly educated and wished the same for him and his family.  At their age, they should be enjoying life but they were in fact stressed because of the applicant’s predicament. It had affected his father’s high blood pressure;

   ·the applicant had been working for Origin Energy since March 2015 and had been living and working in Australia for 14 years.  His wife had come to Australia in 2008, was a personal fitness trainer and used to work at various fitness centres in Melbourne until their daughter was born in November 2011.  Their daughter was nearly 5 and they had been planning on enrolling her to start school.  She had spent the majority of her life here.  The applicant’s brother was an Australian permanent resident and their families socialised together frequently and were close. They also had other cousins in Melbourne.  The applicants had always abided by their visa conditions and all other laws of Australia;

   ·if they had to return to India, they would face discrimination due to their long-term residence in Australia. They would also face financial hardship and could and would not be able to rely on the applicant’s parents to assist them financially. The applicant stated that he was 37 and that looking for a job in India would be very difficult.  He honestly believed he would not be able to support his family;

   ·returning to India would also have an adverse effect on his daughter, who was born in Australia and was used to the Australian way of life.  He was very concerned about how she would cope.  He stated that she would face discrimination in education as it would be very difficult to enrol her now;

   ·he reiterated that he believed he could obtain the required IELTS scores if given proper time to prepare for another test.  He also stated that he and his family were more than happy to live in regional Victoria and had friends in Geelong, where they would be happy to live if granted visas;

   ·the applicant noted that both his and his wife’s skills and qualifications were in demand in Australia.  He had been offered a position as a Restaurant Manager and his wife could return to her work as a fitness instructor once their daughter started school; and

   ·he emphasised that the family would always think of Australia as home, they had ties to Australia and loved the Australian way of life.  He requested a last chance to obtain the required IELTS score so the family, and particularly his daughter, could have a safe and happy life with better opportunities in Australia.

7. In his oral evidence to the Tribunal, the applicant confirmed the contents of his written statement.  He told the Tribunal that the agent he engaged to assist him with the visa applications was named Rudy Frugtniet, and he later discovered that this agent was involved in fraud.  At the time, however, he did not know this and trusted the agent’s advice that his April 2011 IELTS results were still OK to meet the requirements of the subclass 487 visa post-1 July 2011.  He noted that if he had been made aware that there was a problem, he would have ensured that he lodged the visa application prior to 1 July 2011 and/or taken another IELTS test and got 6 in each of the components, and then he would have met the visa requirements.  However, he was led to believe that he could apply under the old rules (that is, with an overall IELTS band score of 6, and not a score of at least 6 in each of the 4 test components of a single test) until December 2011.

8. The applicant said that he applied for the subclass 487 visa sponsored by his brother, who is an Australian permanent resident.  He also has 2 cousins who are Australian citizens.  He emphasised that he had lived in Australia for close to 15 years and that his daughter, who is nearly 5, was born and raised here. The applicant reiterated that he was very worried about his prospects of finding employment in India if they had to return there, and being able to support his family, due to his age and the fact that his parents are retired and are not wealthy people. 

9. The Tribunal discussed with the applicant its view that, as of 1 July 2011, the definition of ‘competent English’ as it applied to cl.487.215 changed to specify an IELTS score of at least 6 in each of the 4 components of a single test, and moreover, that that IELTS score had to have been obtained in a test undertaken in the 2 years immediately before the lodgment of the visa application. Accordingly, the Tribunal advised that its view was that even if the applicant were able to undertake an IELTS test now [in 2016] in which he obtained the required score, this would not meet the requirement to have obtained those scores in a test undertaken in the 2 years immediately before the lodgment of the visa application. After some further discussion, the Tribunal agreed to defer its decision until 7 October 2016, the date on which the applicant expected to receive the results of the IELTS test he undertook on 24 September 2016, so that, as a matter of record, they could be included in the Tribunal’s ultimate decision. The Tribunal reiterated, however, that it did not believe that these results could be used to satisfy cl.487.215 for the reasons explained above.

10. On 10 October 2016, the Tribunal received an email from the applicant to which he attached the results of his IELTS test undertaken on 24 September 2016.  This was issued on 6 October 2016 and indicates that the applicant obtained a score of 5.5 for listening, 4.5 for reading, 5.5 for writing and 7.5 for speaking, with an overall band score of 6.0.

    RELEVANT LAW

11. The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: subclass 485 (Skilled – Graduate) and subclass 487 (Skilled – Regional Sponsored).

12. The visa is being sought on the basis of nomination by a State or Territory government agency or sponsorship by an eligible relative. Accordingly, the application will be initially assessed against the criteria for a subclass 487 visa.

    Criteria in issue

13. The criteria for a subclass 487 visa are set out in Part 487 of Schedule 2 to the Regulations. A primary criterion to be met at the time of application is cl.487.215. Clause 487.215 requires that the applicant has competent English.

    Defined terms

14. ‘Competent English’ is defined in r.1.15C of the Regulations. 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. For the purposes of r.1.15C(a), the Minister has specified the International English Language Test System (IELTS) test and an IELTS test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and an OET test score of at least ‘B’ for each of the 4 test components: Legislative Instrument IMMI 15/005.

16. For the purposes of r.1.15C(b) the Minister has specified valid passports issued by the United Kingdom, the United States of America, Canada, New Zealand and the Republic of Ireland: Legislative Instrument IMMI 15/005.

    CLAIMS AND EVIDENCE

17. The Tribunal has before it the Department’s file relating to the visa applicant. The Tribunal also has had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources, principally the written and oral evidence provided by the applicant.

18. Based on the evidence before it, the Tribunal makes the following findings:

    ·the applicant holds an Indian passport;

    ·the applicant undertook an IELTS test on 2 April 2011 in which he obtained a score of 6 or more in 3 out of the 4 components, but a score of 5.0 for the reading component, and an overall band score of 6.0;

    ·the applicant applied, with the second named applicant, for subclass 487 visas on 31 August 2011.  His daughter, the third named applicant, was added to the visa application after her birth in November 2011;

    ·the applicants were refused the visas on 3 September 2015; and

    ·the applicant undertook a further IELTS test on 24 September 2016, in which he again obtained an overall band score of 6.0 but obtained a score of less than 6 in 3 out of the 4 components of that test.

    FINDINGS AND REASONS

19. The issue in the present case is whether the applicant has the requisite level of English language for the grant of this visa.

20. The Tribunal finds that the applicant does not hold a specified passport for these purposes. He therefore does not meet r.1.15C(b) and can only meet the definition of competent English for the purposes of cl.487.215 if he meets r.1.15C(a).

21. The Tribunal finds that while the applicant did undertake a specified English test in the 2 years immediately before the day on which the application was made, he did not obtain the specified score set out in IMMI 15/005 to meet r.1.15C(a)(iii), which requires a score of at least 6 in each of the 4 components of a single IELTS test.  The applicant has never claimed to have undertaken an OET.

22. The Tribunal has carefully considered whether any legal provision was made such that the applicant was still able to be subject to an earlier, more favourable definition of ‘competent English’ that specified that an overall band score of 6 in an IELTS test was sufficient.  As discussed with the applicant, the Tribunal is of the view that the relevant legal definition was amended as of 1 July 2011, and any undecided applications as at that date, as well as any lodged after that date, were and are subject to the version of r.1.15C set out above (that is, that specifies that IELTS scores of at least 6 in each of the 4 components of a single test).

23. The Tribunal notes the applicant’s evidence that he was misguided on this issue by his then-agent, and might have been able to take action to comply with the new definition of ‘competent English’ had he been correctly advised. However, legally, the Tribunal has no discretion to overlook the combined requirements of cl.487.215 and r.1.15C (as they applied post 1 July 2011) or to apply an earlier definition of ‘competent English.’ Nor does r.1.15C as it applies in this case permit an applicant to provide an IELTS test with the required scores where that test was not undertaken in the 2 years immediately before the visa application was lodged. That is, as discussed with the applicant, even if he were now able to obtain the specified scores in an IELTS or OET test, this would not satisfy the temporal requirement to have been undertaken in the 2 years immediately before the visa application was lodged and thus would not satisfy the applicable definition of ‘competent English.’

24. Accordingly, the Tribunal must find that the applicant does not satisfy the definition of competent English and therefore does not meet cl.487.215. He cannot be granted a subclass 487 visa, and the Tribunal must affirm the decision not to grant him a visa of this subclass. It must also affirm the delegate’s decision to refuse to grant visas to the second and third named applicants, as they do not meet the secondary visa criteria to be members of the family unit of a person who meets the primary visa criteria, and there is no evidence before the Tribunal that either of them meets the primary visa criteria in their own right.

25. The applicants did not claim to have applied for, or to meet the criteria for, subclass 485 visas.  The Tribunal concurs with the delegate that they did not specify that they wished to apply for this subclass of visa within Class VC and therefore have not made valid applications for subclass 485 visa applications.  In any case, the Tribunal notes that the criteria for a subclass 485 visa also requires the main applicant to meet the above definition of ‘competent English.’

26. The Tribunal acknowledges that the applicant is very concerned for his and his family’s future as a result of the refusal of their visas, and that the family has been in Australia for a considerable period of years.  The Tribunal notes that it is open to the applicants to seek Ministerial intervention pursuant to s.351 of the Act despite the unsuccessful review application, if they believe that they meet the Guidelines for Ministerial intervention (which can be found on the Department’s website: if they believe that they meet these Guidelines or otherwise have unique or exceptional circumstances which would warrant Ministerial intervention.

    DECISION

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

    Alison Mercer
    Member