1517179 (Migration)

[2016] AATA 3421

1517179 (Migration) [2016] AATA 3421 (9 March 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shaiq Mohammed

CASE NUMBER:  1517179

DIBP REFERENCE(S):  BCC2010/257115

MEMBER:Bruce MacCarthy

DATE:9 March 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

·cl.886.213 of Schedule 2 to the Regulations.

Statement made on 09 March 2016 at 9:09am

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 2 December 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 27 June 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. 

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 visa application that he had not undertaken any English test in the previous 24 months.  On 19 August 2015 he was asked to provide, among other things, evidence that he had competent English.  He was asked again on 22 October 2015 and, in response, submitted the results of an IELTS test conducted on 10 October 2009.  However, those results included a score of 5.0 for the test component of writing and therefore did not establish that the applicant had competent English. 

10. At the hearing, the applicant said that he had undertaken 3 specified English language tests since 27 June 2008.  However, in each of those tests, he had failed to achieve a score of 6 in each of the 4 test components.

11. In written submissions and at the hearing, the applicant said that he had made a booking to undertake a further IELTS test on 18 February 2016.  At the hearing, he said that he expected to receive results of this test on 3 March 2016.  In these circumstances, the Tribunal said that it would delay its decision until after 6 March 2016 to allow the applicant time to submit those results. 

12. He did not submit the results of any test conducted on 18 February 2016.  Instead, he submitted the results of an IELTS test conducted in India on 20 February 2016.  The Department’s records show that he left Australia on 19 February 2016 and returned here on 24 February 2016.

13. According to the relevant Test Report Form, he achieved scores of 8.0 for Listening, 6.0 for Reading, 6.0 for Writing and 6,5 for Speaking.  Some of these scores are somewhat higher than the corresponding scores he achieved in tests conducted in Australia in January 2016, but the Tribunal has verified the results obtained on 20 February 2016..  Given those results, the Tribunal finds that the applicant has competent English as defined in r.1.15C(a).

14. On the basis of the above, the applicant meets the requirements of cl.886.213 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

15. The Tribunal remits the application for a Skilled (Residence) (Class VB) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 886 visa:

    · cl.886.213 of Schedule 2 to the Regulations.

    Bruce MacCarthy
    

    Member