1515775 (Migration)

[2016] AATA 3563

1515775 (Migration) [2016] AATA 3563 (17 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Maqdoom Mohiuddin Mohammed

CASE NUMBER:  1515775

DIBP REFERENCE(S):  BCC2010/185930

MEMBER:Bruce MacCarthy

DATE:17 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 17 March 2016 at 11:00am

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 29 October 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 29 April 2010. 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).

3. The delegate refused to grant the visa because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 16 February 2016 to give evidence and present arguments.  The applicant was represented in relation to the review by his registered migration agent.

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

   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 his application for the visa, the applicant said he had booked to undertake an English language test on 23 April 2010.  His then migration agent also referred to an IELTS test dated 21 August 2010.  However, the agent told the Department, in August 2015, that the applicant had not, as at that time, achieved scores demonstrating competent English.  She said that he had made a booking to undertake an IELTS test on 26 September 2015.  However, the applicant did not respond to a request from the Department for the results of that test. 

10. At the hearing, the applicant said that, in the test conducted on 26 September 2015, he had achieved scores of 5.0 in 3 of the 4 test components.  He said that he had lost the results of the 2 previous tests, but he had not achieved the requisite scores in either of those tests.

11. He said that he had a current booking to undertake an IELTS test on 20 February 2016, a few days after the hearing.  He said that he expected to receive the results of that test on 14 March 2016.  The Tribunal expressed the view that it would expect him to be in a position to obtain the results of a test conducted on 20 February as early as 4 March 2016.  It said it would base its decision on the results of that test when he submitted them but, giving him the benefit of the doubt that the results would not be available until 14 March, it said that, if no results had been submitted by 16 March 2016, it would assume that he did not achieve a score that would demonstrate competent English in the test of 20 February 2016. 

12. The applicant failed to submit the results of the IELTS test conducted on 20 February 2016 by 16 March 2016, as discussed at the hearing, and has not done so as at the date and time of this decision.  The applicant has not contacted the Tribunal to explain any reason for his failure to submit those results.  As discussed at the hearing, the Tribunal infers from his failure to submit the results of the test conducted on 20 February 2016, that those results did not demonstrate that he has competent English.  The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C(a).

13. In the application for the visa, the applicant said he is a citizen of India and holds a passport of that country.  He also said that he did not hold any other passport.  He confirmed this at the hearing.  As India is not one of the countries specified in IMMI 15/005 for the purposes of r.1.15C(b), the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(b).  It follows from this finding, and the finding in the previous paragraph, that that the applicant does not have competent English as defined in r.1.15C. 

14. On the basis of the above, the applicant does not meet the requirements of cl.886.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 886 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

15. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Bruce MacCarthy
    

    Member