1515977 (Migration)

[2016] AATA 3277

1515977 (Migration) [2016] AATA 3277 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Imran Hossain Manik

CASE NUMBER:  1515977

DIBP REFERENCE(S):  BCC2010/187912

MEMBER:Bruce MacCarthy

DATE:16 February 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 16 February 2016 at 2:47pm

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 3 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 5 May 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 Tribunal hearing was conducted with the assistance of an interpreter in the Bangla and English languages.  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 said in his application that he had not undertaken any English language test within the previous 24 months.  Later, however, in response to a request from the Department, the applicant provided information about an IELTS test he had undertaken on 29 August 2015.  However, the applicant did not achieve the specified scores in that test. 

10. At the hearing, the applicant told the Tribunal that he had undertaken numerous English language tests in the past.  He showed the Tribunal the test report forms for 7 IELTS tests, conducted on the following dates:

    ·13 May 2006;

    ·20 May 2010;

    ·10 January 2015;

    ·14 March 2015;

    ·9 May 2015;

    ·13 June 2015; and

    ·12 September 2015.

11. The test report forms indicated that the applicant never achieved a score of 6.0 or more in all 4 components in any one of these tests.  Indeed, in only one of those tests, namely that conducted on 13 June 2015, did he achieve a score of 6.0 or more in any test component.  On that occasion, he achieved a score of 6 of the test component of listening only.  The applicant said that he had undertaken other English language tests in the past but had lost the test report forms for these tests.  However, he told the Tribunal that he had not achieve the requisite results in any of those tests.

12. Given this evidence, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a). 

13. In written submissions, and at the hearing, the applicant told the Tribunal that he had made a booking to undertake a further IELTS test on Saturday 2 April 2016.  The Tribunal noted that the applicant could have arranged to undertake a further test before the date of the hearing.  He said that he could not do so because he had to wait until you had a current passport and that passport was not obtained until January 2016.  The Tribunal pointed out that that still would have allowed him time to look at test prior to the date of the hearing.  He asked the Tribunal to delay its decision by approximately 2 months to allow him to sit for the further test and, hopefully, achieve the requisite results and submit them.  He said this was his last chance.

14. The Tribunal said that it did not believe it should delay its decision further, given the overall lapse of time since the applicant applied for the visa, and the fact that he had undertaken numerous specified English language tests in the past, including at least 4 in the previous 12 months, without achieving the requisite scores.  The Tribunal said that, given the results he achieved in his past tests, it was nothing more than speculation that he might achieve the requisite results now.

15. The Tribunal told the applicant that it was its intention to make a decision on the case within the next few days, but that it would give the matter further thought after the hearing.  It said that, if it were to change its mind after the hearing, it would contact him and advise him accordingly.  The Tribunal has given the matter further thought but remains of the view that it should not delay its decision any further, for the reasons stated in the previous paragraph. 

16. At the hearing, the applicant said he is a citizen of Bangladesh and holds a passport of that country.  He also said that he did not hold any other passport.  As Bangladesh 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 paragraph 12 above, that the applicant does not have competent English as defined in r.1.15C. 

17. 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

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

    Bruce MacCarthy
    

    Member