1515786 (Migration)

[2016] AATA 3837

1515786 (Migration) [2016] AATA 3837 (3 May 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Saini

CASE NUMBER:  1515786

DIBP REFERENCE(S):  BCC2011/238206

MEMBER:Bruce MacCarthy

DATE:3 May 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 03 May 2016 at 9:39am

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 17 November 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 30 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).

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. According to the decision under review (a copy of which the applicant provided to the Tribunal without comment) the applicant was asked on 31 August 2015 to provide, among other things, evidence that he had competent English.  He was given the period of 28 days to respond.  On 28 September 2015, he advised that he had undertaken an IELTS test on 26 September 2015 and had also booked to undertake a subsequent IELTS test on 10 October 2015. 

10. He asked for an extension of time to allow him to submit the results of those tests.  On 29 October 2015 he advised that he had not achieved competent English on the basis of the test undertaken on 10 October 2015.  He confirmed at the hearing that the results of the earlier test also did not establish competent English.

11. He told the Tribunal that he had undertaken about 7 or 8 IELTS tests, most recently on 23 January 2016, and was booked to undertake a further test on 18 February 2016.  He said he expected to be in a position to submit the results of this latter test on 4 March, and would do so.  The applicant had provided evidence that he had also booked to undertake a further test on 5 March 2016, but the Tribunal said it did not think it would be appropriate to wait for the results of that test, if the results of the test on 18 February were unsatisfactory.

12. He said that his results in the test of 23 January had fallen marginally short of the requisite standard, having achieved one score of less than 6, namely a score of 5.5 for the test component of reading.  He had asked for a re-mark of his test results in that test but said that he may have to wait several weeks for the outcome.  In these circumstances, the Tribunal said it would give him until 15 April 2016 to submit the results of the remark.  In the event that the results of the test conducted on 18 February 2018 were satisfactory, it would make a favourable decision as it would if the results of the remark of the earlier test were satisfactory.  However, if the results of both tests were unsatisfactory, it would affirm the decision under review.  It said that if he failed to submit the results of the remark on or before 15 April 2016, it would assume that his results remained unsatisfactory.

13. On 7 April 2016, the applicant said he was still waiting for the results of the remark he had requested [i.e. for the test conducted on 23 January 2016].  He said that he hoped to receive the results by 13 April but it might still take a further 2 weeks beyond that date.  He asked the Tribunal to delay its decision until after 27 April.  He made no mention of the results of the test conducted on 18 February 2016, or of the results of the test he said he had booked to undertake on 5 March 2016. 

14. An officer of the Tribunal advised the applicant’s migration agent that the Tribunal was prepared to extend the time but wished to have a clear indication of when the results of the remark would be available.  The applicant was unable to obtain a firm date from the people administering the remark, but his agent asked the Tribunal to give the applicant until 30 April 2016 to submit the results of his review. 

15. On 18 April 2016, the applicant provided material that indicated that he was awaiting the outcome of a remark of his test results in the test conducted on 18 February 2016, not his results in the test conducted on 23 January 2016.  The material he provided indicated that had applied for the remark of the test in early March 2016. 

16. An officer of the Tribunal advised the applicant’s migration agent that it would make its decision on the basis of material submitted by the close of business on 2 May 2016. 

17. On 2 May 2016, the applicant advised the Tribunal that the outcome of the remark of his results in the test conducted on 23 January 2016 was that his marks remained unchanged.  In that test, he had failed to achieve a score of 6 or more in the test component of reading.  He said that, in the test conducted on 18 February 2016, he had failed to achieve a score of 6 or more in the test component of listening.  He had then, on 2 March 2016, requested a remark of the test of 18 February.  He had received the results of the remark by letter dated 18 April 2016.  Again, the re-mark resulted in no change to his test scores.

18. The applicant provided evidence that, on 26 April 2016, he had made a booking to undertake a further IELTS test on 30 April 2016.  He said he was now awaiting the results of that test and asked the Tribunal to delay its decision pending receipt of those results.

19. In all the circumstances, the Tribunal has declined to delay its decision further.  The applicant has attempted to mislead the Tribunal regarding the circumstances of his past tests.  The evidence before the Tribunal clearly indicates that the applicant did not advise the Tribunal of the results of the remark of the results of the test conducted on 23 January 2016 soon after he received them.  Similarly, he did not advise the Tribunal of the results of the test conducted on 18 February 2016 soon after they were received.  Nor did he inform the Tribunal that he had sought a remark of those results soon after he did so.  Instead, he told the Tribunal that he was still awaiting the results of the remark of the test of 23 January 2016.

20. Even after the applicant receive the results of the re-mark of the test of 18 February, the applicant did not advise the Tribunal immediately but instead booked a further IELTS test, and did not advise the Tribunal until 2 May 2006.  Although the applicant said in his letter that he would not seek any further extension of time, the Tribunal is not satisfied that this would be the case. 

21. While the Tribunal accepts that the applicant has only marginally failed to achieve the requisite standard of English in recent tests, the fact remains that almost 7 years have passed since he lodged his application for the visa.  He has therefore had almost 7 years to demonstrate that he has competent English. 

22. When the hearing was conducted, the applicant said that he had undertaken “7 or 8” IELTS tests.  The evidence before the Tribunal indicates that he had undertaken at least three in the previous 6 months: on 28 September 2015; on 10 October 2015; and on 23 January 2016.  He was about to undertake a further test on 18 February 2016 and had also booked to undertake yet another test on 5 March 2016.  He has failed to achieve the requisite standard of English in any of those tests, despite having the tests of 23 January and 18 February 2016 remarked.  The Tribunal infers from his failure to mention the results of the test on 5 March 2016 that he did not achieve the requisite scores in that test either.

23. While it recognises that he has recently undertaken a further test and does not yet have the results of that test, the Tribunal is unwilling to delay its decision further given that, had the applicant informed the Tribunal of his results soon after he achieved them, its decision would have been made approximately 2 months ago.

24. The only English language tests that the applicant has undertaken are IELTS tests.  Given that the applicant has failed to achieve an IELTS test score of at least 6 for each of the 4 test components in any of those tests, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

25. 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 was not a citizen of any other country.  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 the applicant has competent English as defined in r.1.15C. 

26. 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

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

    Bruce MacCarthy
    

    Member