1514712 (Migration)

[2016] AATA 3565

1514712 (Migration) [2016] AATA 3565 (26 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Maninder Kaur
Mr Gurinder Pal Singh
Miss Japji Bajwa

CASE NUMBER:  1514712

DIBP REFERENCE(S):  BCC2011/274314

MEMBER:Di Hubble

DATE:26 March 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the first and second named applicants Skilled (Provisional) (Class VC) visas.

The Tribunal does not have jurisdiction in relation to the application for review concerning the third named applicant.

Statement made on 26 March 2016 at 6:23pm

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 22 June 2011. At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses: 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). Having regard to the visa application, the relevant subclass in this case is Subclass 485, the criteria for which 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 12 July 2012 because the first named applicant (the applicant) did not have the required English language proficiency, namely competent English.  Specifically, the delegate noted that the applicant:

·Had not provided an IELTS test and, therefore, did not satisfy r.1.15C(a)(i);

·Had not provided an Occupational English Test (OET) and, therefore, did not satisfy r.1.15C(a)(ii);

·Had not provided evidence that she held a passport of a type specified by the Minister and, therefore, did not satisfy r.1.15C(b).

4.     Accordingly, the delegate found the applicant did not have competent English, as prescribed by r.1.15C and, consequently, she did not satisfy cl.485.215.  The delegate also found that the second and third named applicants did not meet the subclass 485 criteria as there was no evidence that they met the primary criteria in their own right and they did not meet cl.485.321, which required them to be members of the family unit of a person who held a subclass 485 visa.  Finally, the delegate found that the applicants had not made a valid application for the alternate visa subclass, 487 (Skilled Regional Sponsored), as they did not specify this subclass in their visa application for the purposes of paragraph 46(1)(a) of the Act.

5.     The subsequent procedural history of this matter is set out at paragraphs 5 to 19 of the Tribunal’s decision, dated 12 June 2015, and for the sake of brevity will not be repeated here.  The Tribunal decided to affirm the decision not to grant the first and second named applicants the visas on the basis that the applicant did not meet cl.485.215 as she did not have competent English, as defined in r.1.15C(a).  Further, the Tribunal found that it did not have jurisdiction in relation to the application for review concerning the third named applicant. 

6.     The applicants subsequently sought judicial review of the Tribunal’s decision and on 27 October 2015 this matter was remitted by consent because it was conceded that the decision was affected by jurisdictional error as the Tribunal had failed to invite the applicants to appear at a hearing, in accordance with s.360 of the Act.

7.     On 21 December 2015 the Tribunal invited the applicants to attend a hearing on 13 January 2016. 

8.     On 8 January 2016 the Tribunal received various documents from the applicants, including 3 IELTS tests undertaken by the applicant during the period 1 March 2014 to 26 April 2014 and various PTE Academic tests undertaken throughout late 2014/early 2015. 

9.     On 12 January 2016 the Tribunal received a hearing postponement request, which it acceded to. 

10.      The applicants appeared before the Tribunal on 27 January 2016 to give evidence and present arguments.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

11.      At the hearing, the applicant submitted an IELTS test result, dated 21 January 2016, which indicates that she achieved scores of 6.0 for Listening; 5.5 for Reading; 6.0 for Writing and 5.5 for Speaking in a test taken on 9 January 2016.  Also submitted was a booking for an IELTS test on 5 March 2016.  The applicant claimed she was “110% sure” she would achieve the required score in that IELTS test.  Accordingly, the applicant was granted an extension of time until 21 March 2016 to submit the outcome of that test. 

12.      On 21 March 2016 the applicant submitted an IELTS test result, dated 10 March 2016, which indicates that she achieved scores of 6.5 for Listening; 5.5 for Reading; 5.5 for Writing and 6.0 for Speaking in a test taken on 27 February 2016, together with an IELTS test result, dated 16 March 2016, which indicates that she achieved scores of 5.5 for Listening; 5.5 for Reading; 5.5 for Writing and 5.5 for Speaking in a test taken on 5 March 2016.  The applicant requested a further extension of time to enable her to sit another IELTS test.

13.      The applicant has been on notice since the delegate’s decision was made on 12 July 2012 that she did not meet the English language proficiency requirement and the reasons for this.  Therefore, the applicant has since had more than 3½ years to achieve competent English.  She has clearly been unable to do so and, in fact, her most recent IELTS test result, dated 16 March 2016, indicates a worse outcome than the IELTS test result, dated 10 March 2016.  In light of this, and the overall circumstances of this matter, the Tribunal decided to refuse the applicant’s request for a further extension of time.  The applicant was notified of this on 23 March 2016 and that the Tribunal would proceed to make a decision on the available information.

CONSIDERATION OF CLAIMS AND EVIDENCE

Does the Tribunal have jurisdiction to conduct a review in relation to the third named applicant?

14.      The Tribunal's jurisdiction only arises if an application is properly made under s.347 of the Act for review of an MRT-reviewable decision: s.348 of the Act.  Section 338 of the Act and r.4.02(4) of the Regulations set out the various decisions that are MRT-reviewable decisions.

15.      An application for review of a MRT-reviewable decision covered by subsection 338(2) can only be made by a non-citizen who is physically present in the migration zone when the application for review was made.  The application for review in this instance was made on 24 July 2012 and Departmental movement records indicate that the third named applicant was not in Australia on that date. 

16.      On 23 March 2015 the Tribunal wrote to the applicants inviting their comment on the validity of the third named applicant’s review application. 

17.      On 3 April 2015 the Tribunal received the applicant’s response conceding that the third named applicant’s review application was not valid.

18.      As she was not physically present in the migration zone when the application for review was made, the Tribunal cannot review the application in relation to the third named applicant.

Competent English

19.      The issue before the Tribunal is whether the applicant has competent English as required by cl.485.215.  The relevant version of regulation 1.15C provides that:

If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

(a)      has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(i)      an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

(ii)      a score:

(A)      specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B)      in a language test specified by the Minister in the instrument; or

(b)      holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

20.      The relevant instrument is IMMI 15/005, which specifies the English language tests, scores and passports, provides in relation to visa applications lodged prior to 1 July 2012:

For the purposes of r.1.15C, the specified English language tests, scores and passports are:

·an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

·an OET score of at least ‘B’ in each of the four components; or

·a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

21.      There is no evidence that the applicant has held a passport of a type specified and as such r.1.15C(b) is not met.

22.      For r.1.15C(a) the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components.  There is no evidence that the applicant has achieved the requisite score in either of these tests.  Although the applicant submitted various PTE Academic tests, it was evident from the delegate’s decision, dated 12 July 2012, and the Tribunal also noted at its hearing, that this was not one of the methods by which an applicant who lodged their visa application on 22 June 2011 (as here) could demonstrate competent English. 

23.      Accordingly, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

24.      On that basis, the applicant does not meet the requirements of cl.485.215 of the Regulations and, therefore, she 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 must be affirmed in respect of the first and second named applicants.

DECISION

1. The Tribunal affirms the decision not to grant the first and second named applicants Skilled (Provisional) (Class VC) visas.

2. The Tribunal does not have jurisdiction in relation to the application for review concerning the third named applicant.

   Di Hubble
   Member