1517237 (Migration)

[2016] AATA 4594

1517237 (Migration) [2016] AATA 4594 (2 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Priscila MATOS EIKAWA

CASE NUMBER:  1517237

DIBP REFERENCE(S):  BCC2011/84364

MEMBER:Antonio Dronjic

DATE:2 November 2016

PLACE OF DECISION:  Melbourne

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 02 November 2016 at 4:27pm

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 1 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 15 February 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 applied to the Tribunal on 14 December 2015 for review of the delegate’s decision.

5. Under subsection 360(2)(a) of the Act the Tribunal considered that it should decide the review in the visa applicant’s favour on the basis of the material before it, so there was no need for the visa applicant to be invited to appear before the Tribunal to give evidence and present arguments relating to the issues arising in relation to the decision under review.

   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. In the present case, the applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b).

8. On 27 October 2016 the applicant provided the IELTS test report related to the test undertaken on 8 October 2016 evidencing the following results:

   Listening         6.5

   Reading          6.0

   Writing            6.0

   Speaking        6.0

9. The Tribunal finds, having regard to the reasoning in Berenguel v MIAC [2010] HCA 8, Habib & Ors v Minister for Immigration & Anor [2010] FMCA 450, Mevada v MIAC & Anor [2010] FMCA 616 and Nayeem v Minister for Immigration [2010] FMCA 618, that an IELTS test completed after the application may meet the requirements of r. 1.15C.

10. The Tribunal finds that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted not more than 2 years before the day on which the visa application was lodged. The Tribunal therefore finds that the applicant has competent English as defined in r.1.15C.

11. 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

12. 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.

    Antonio Dronjic
    Member