1514848 (Migration)

[2016] AATA 4464

1514848 (Migration) [2016] AATA 4464 (3 October 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Harpreet Kaur

CASE NUMBER:  1514848

DIBP REFERENCE(S):  BCC2010/222932

MEMBER:Antonio Dronjic

DATE:3 October 2016

PLACE OF DECISION:  Melbourne

DECISION:The tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

·cl.487.215 of Schedule 2 to the Regulations.

Statement made on 03 October 2016 at 2:36pm

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 applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 2 June 2010. The delegate decided to refuse to grant the visa on 29 October 2015. 

3. The delegate refused the visa application on the basis that the applicant did not satisfy cl.487.215 in Part 487 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant has failed to provide evidence of having a concessional competent level of English language.

4. The applicant applied to the tribunal on 2 November 2015 for review of the delegate’s decision.

RELEVANT LAW

1. 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).

2. 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

1. 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 concessional competent English (cl.487.215(a)); or

   ·the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl.487.215(b)).

2. Where the application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, the applicant must also satisfy cl.487.224 at the time of decision. Clause 487.224 requires that the applicant has concessional competent English.

Defined terms

1. The term ‘concessional competent English’ is defined in r.1.15E. An applicant for a Subclass 487 has concessional competent English if the persons satisfies the Minister that: he or she has achieved, in a test conducted not more than 2 years before the date of the application:

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

   ·a specified score in a language test specified by the Minister in writing.

2. At the relevant time for this application, no other language test had been specified by the Minister.

CLAIMS AND EVIDENCE

1. The tribunal has before it the Department’s file relating to the applicant. 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.

2. On 16 August 2016, the applicant’s representative provided a copy of the IELTS test dated 16 June 2016. The test results show that the applicant achieved the following scores: listening 6.0, reading 6.0, writing 5.0 and speaking 6.0 with an average of 6.0. The submissions asserted that the applicant would satisfy the English language requirement if he achieved an average score of 6.0 in an IELTS test at any time prior to decision.

Is this case analogous to Berenguel?

1. There has been no judicial consideration of cl. 487.215 and ‘concessional competent English’ for applications made after 1 January 2010 and before 1 July 2011.

2. In the case of Berenguel v MIAC [2010] HCA 8 (5 March 2010), the High Court held that the applicant satisfied the time of application criterion in cl. 885.213(b) – “the applicant has competent English” – even though he underwent a test after lodging the application. Clause 885.213(a) provided: the applicant's nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupation, and the applicant has vocational English.

3. The High Court (at [24]) drew a distinction between cl. 885.213 and cl 885.214 and 885.215:

   The evident purpose of the alternative criteria in cl 885.213 is to ensure that, when the Minister or delegate decides upon the application for a visa, the applicant will have demonstrated recent competency in the English language. It does not follow that the criterion can only be satisfied by evidence provided to the Minister at the time of submitting the application. In this connection it is useful to note the contrast between the requirements of cl 885.213 and cll 885.214 and 885.215.

4. Clauses 885.214 and 885.215 stipulated that the application ‘must be accompanied by evidence’ in relation to the character and health criterion respectively.

5. The question before the tribunal is whether the reasoning of Berenguel applies to cl 487.215 even though cl 487.215(b) is worded similarly to cl 885.214 and 215.

6. The tribunal notes the High Court comments in relation to cl 885.214 and 215 but notes that the expression ‘must be accompanied by evidence’ or ‘is accompanied by evidence’ appears in cl. 487.215(b). The same expression does not appear in cl. 487.215(a). Clause 487.215(a) is worded in a virtually identical manner to cl 885.213, except that it refers to a different level of English: ‘the applicant has concessional competent English’ (cl 487.215(a)) and ‘the applicant has vocational English (cl 885.213).

7. In Habib v MIAC [2010] FMCA 450, the Federal Magistrates Court (Smith FM) considered an application for a visa subclass 485.

8. The relevant regulations provided as follows:

   485.215 Either:

   (a) the applicant’s nominated skilled occupation is in Major Group IV in the Australian Standard Classification of Occupations, and the applicant has vocational English; or

   (b) the applicant has competent English; or

   (c) the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing for this paragraph.

9. The Federal Magistrates Court held (at [6]) that

   the arranged language test option in cl.485.215(c) was not intended to confine the effect of the other language test criteria found in cl.485.215(a) and (b). I consider that those paragraphs should be given the same effect as was given by the High Court to cl.885.213(a) and (b).

10. The tribunal considers that the wording of cl 487.215(a) and (b) is sufficiently similar to that of cl 485.215(b) and (c) respectively that the reasoning of Habib applies to applications for a visa subclass 487 lodged after 1 January 2010 and before 1 July 2011. The tribunal finds that cl 487.215(b) does not have the effect of limiting the plain language of cl 487.215(a). To conclude otherwise would produce, in the tribunal’s view, plain absurdity and unfairness.

11. Therefore, the tribunal finds that cl. 487.215(a) – ‘the applicant has concessional competent English’ – can be satisfied if an applicant achieves an average score of 6 in an IELTS test undertaken after the date of application. On the basis of the IELTS test results provided by the applicant, the tribunal is satisfied that he has ‘concessional competent English’.

CONCLUSIONS

1. Given the findings made above, the tribunal remits the matter with a direction that the applicant meets cl.487.215.

DECISION

1. The tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 487 (Skilled - Regional Sponsored) visa:

   · cl.487.215 of Schedule 2 to the Regulations.

Antonio Dronjic
Member