1513320 (Migration)

[2016] AATA 3742

1513320 (Migration) [2016] AATA 3742 (18 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Junia Afroz
Mr Mohammad Rezaul Haque Khan
Master Mohammad Rayid Khan

CASE NUMBER:  1513320

DIBP REFERENCE(S):  BCC2011/235666

MEMBER:Bruce MacCarthy

DATE:18 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 886 visa:

·cl.886.213 of Schedule 2 to the Regulations.

Statement made on 18 April 2016 at 3:53pm

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 9 September 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 27 May 2011. At the time the visa application was lodged, Class VB contained three subclasses, 885 (Skilled – Independent), 886 (Skilled - Sponsored) and 887 (Skilled – Regional). Having regard to the visa application, the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 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 to grant the visas because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 16 February 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Bengali and English languages.  The applicants were represented in relation to the review by their registered migration agent.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant has competent English as required by cl.886.213.  Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister.  Such a test may be conducted after the application was lodged, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417. Alternatively, a person has competent English if he or she holds a passport of a type specified by the Minister (r.1.15C(b)).

7. The relevant instrument is IMMI 15/005.  That instrument is expressed to apply to applications lodged before 1 July 2012, but does not reflect the structure of r.1.15C as in force at the time the visa application was made.  This appears to have arisen because of drafting errors and, insofar as IMMI 15/005 misdescribes the relevant legislation, the ‘slip rule’ applies so that the incorrect references to the definitions should be taken to be references to the relevant version of those provisions. 

8. On this basis, for the purposes of r.1.15C(a), the Minister has specified the Occupational English Test (OET), and an OET test score of at least ‘B’ for each of the 4 test components.  Similarly, 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 or Republic of Ireland, to a citizen of that country.

9. In her application for the visa, the applicant said she had not undertaken any English test in the previous 24 months.  In written submissions and in oral evidence at the hearing, the applicant said she had undertaken an IELTS test in February 2009 and had submitted the results of that test in connection with an application, lodged in March 2009, for a subclass 176 visa.  She said that the results of that test, though not establishing competent English, would have been sufficient for the purposes of the application in question.  She later lodged the application for the Subclass 886 visa, including her husband is an applicant, after he returned to Australia in November 2010.

10. She said that, in the belief that she had demonstrated sufficient level of English for the purposes of her initial application, she did not undertake any further IELTS tests.  However, in September 2015, the Department declared a “cap and cease” policy for all outstanding applications for Subclass 176 visas, with the result that her only then current application was the application for the Subclass 886 visa.  The Department made a decision on that application without requesting any further evidence of her English language proficiency, referring only to the results of the IELTS test undertaken in February 2009.

11. The applicant said that she had since undertaken an IELTS test on 9 January 2016, but the results of that test did not demonstrate that she had competent English.  Although she achieved scores of 6.0 for 3 of the 4 test components his score for the test component of reading was only 5.0.  She said that, at the time the decision was made, she was pregnant and had a number of medical difficulties.  Since then, her baby had been born but she, too, had a number of medical difficulties which had resulted in the applicant being unable to devote a lot of time to preparing for an IELTS test

12. Prior to the hearing, the applicant had provided evidence that she had booked to undertake a further IELTS test on 16 April 2016, some 30 days after the date of the hearing.  She asked the Tribunal to take her medical problems and those of her children into account and to delay its decision by “at least 6 months” to study for a further IELTS test.  At the hearing, the applicant and her husband gave further evidence about the family’s medical difficulties.  The applicant said she was not confident that she would achieve suitable results in the test to be conducted on 16 April, and that she would require further time.

13. However, the applicant has since submitted the results of an IELTS test she undertook on 2 April 2016.  In that test, she achieved scores of 6.0 in each of the 4 test components.  An officer of the Tribunal has verified these results. 

14. On the basis of these results, the Tribunal finds that the applicant has competent English as defined in r.1.15C(a).

15. On the basis of the above, the applicant meets the requirements of cl.886.213 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

16. The Tribunal remits the applications for Skilled (Residence) (Class VB) visas for reconsideration, with the direction that the first named applicant meets the following criterion for a Subclass 886 visa:

    · cl.886.213 of Schedule 2 to the Regulations.

17. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Bruce MacCarthy
    

    Member