1517148 (Migration)

[2016] AATA 3253

1517148 (Migration) [2016] AATA 3253 (16 February 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Agustin De Notta

CASE NUMBER:  1517148

DIBP REFERENCE(S):  BCC2015/2633637

MEMBER:Bruce MacCarthy

DATE:16 February 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled - Independent (Permanent) (Class SI) visa.

Statement made on 16 February 2016 at 11:56am

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 9 December 2015 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s.65 of the Migration Act 1958 (the Act).  This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant was invited to apply for the visa on 7 September 2015 and applied for the visa on 9 September 2015 nominating the skilled occupation of Agricultural Consultant [an occupation with the ANZSCO Code 234111]. .

3. The criteria for the grant of a Subclass 189 visa are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate refused to grant the visa because the applicant did not satisfy cl.189.213 because he did not have the required English language proficiency.

4. The applicant appeared before the Tribunal (in a telephone conference at his request) on 16 February 2016 to give evidence and present arguments. 

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.  That clause requires that, at the time of invitation to apply for the visa, the applicant had competent English.

7. ‘Competent English’ is relevantly defined in r.1.15C of the Regulations as follows:

   (1)A person has competent English if:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the person is an applicant for a visa; and

   (ba)for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under the Regulations, in writing, to apply for the visa - the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb)…; and

   (c)the person achieved a score specified in the instrument.

   (2)A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

8. The applicable language tests, scores and passports are specified for the purposes of r.1.15C in IMMI 15/005.

9. According to the decision under review, a copy of which the applicant provided to the Tribunal, the applicant said in his application for the visa that he had competent English at the time of invitation to apply for the visa.  This is not strictly correct because what he said in his application was that he had undertaken an English language test within the previous 36 months [i.e. from the date of application] and that he had competent English.  However, he confirmed at the hearing that he had given equivalent information in the expression of interest [which was dated 4 September 2015] that gave rise to the invitation to apply for the visa. 

10. At the hearing, the applicant confirmed that he was invited to apply for the visa on 7 September 2015 and that he did so on 9 September 2015.  He confirmed that he had not undertaken any specified language tests in the period of 3 years immediately before the date of invitation as required by r.1.15C(1)(ba).  He had said in his application that he had undertaken an IELTS test on 30 October 2012, but in fact that test had been conducted on 30 October 2010.  The Tribunal said that the fact that an invitation was issued in response to his expression of interest suggested that he had similarly stated in the expression of interest that he had undertaken the test on 30 October 2012.  In response, the applicant said that he had written 2012 because the online process did not allow him to continue when he entered “30 October 2010.”

11. As the applicant was a person who was invited to apply for the visa, the provisions of r.1.15C(1)(ba) are applicable.  Given that the only relevant test undertaken by the applicant was not conducted in the 3 years immediately before the date of the invitation to apply for the visa, the requirements of r.1.15C(1)(ba) are not met .  Given this evidence, the Tribunal finds that the applicant does not have competent English as that term is defined in r.1.15C(1).

12. At the hearing, the applicant confirmed that, at the time of invitation, he did not hold a passport of a kind specified in IMMI 15/005 for the purposes of r.1.15C(2).  Given this evidence, the Tribunal finds that the applicant does not have competent English as that term is defined in r.1.15C(2).  It follows from this finding, and the finding in the previous paragraph, that the applicant does not have competent English as that term is defined in r.1.15C. 

13. The applicant therefore does not satisfy the requirements of cl.189.213 of Schedule 2 to the Regulations.

14. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 189 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 - Independent (Permanent) (Class SI) visa.

    Bruce MacCarthy
    

    Member