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

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).
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).
The delegate refused to grant the visa because the applicant did not have the required English language proficiency.
The applicant applied to the Tribunal on 14 December 2015 for review of the delegate’s decision.
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
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)).
In the present case, the applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b).
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
The Tribunal finds, having regard to the reasoning in Berenguel v…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4594
Decision Date: 2 November 2016

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Residence) (Class VB) visa, specifically a Subclass 886 visa. The applicant sought review of a decision concerning their eligibility for the visa, with the central dispute revolving around whether the applicant possessed "competent English" as required by clause 886.213 of the Regulations. The decision was made by Antonio Dronjic, a Member of the Tribunal.

The primary legal issue before the Tribunal was to determine whether the applicant satisfied the definition of "competent English" under regulation 1.15C. This involved considering whether an IELTS test conducted after the visa application was lodged, but within two years prior to the lodgement date, could satisfy the requirements of the regulation, and whether the applicant's specific IELTS scores met the minimum threshold for each of the four test components.

The Tribunal reasoned that, in accordance with established case law including *Berenguel v MIAC*, an IELTS test taken after the application lodgement could indeed satisfy regulation 1.15C, provided it was conducted no more than two years before the application date. The applicant had provided an IELTS report from a test taken on 8 October 2016, with scores of 6.5 for Listening, 6.0 for Reading, 6.0 for Writing, and 6.0 for Speaking. The Tribunal found that these scores met the requirement of achieving at least 6 for each of the four test components. Consequently, the Tribunal determined that the applicant had demonstrated competent English as defined in regulation 1.15C and therefore met the requirements of clause 886.213.

The Tribunal remitted the application for a Skilled (Residence) (Class VB) visa for reconsideration by the Minister, with the direction that the applicant meets the criteria for a Subclass 886 visa in relation to competent English. The Minister was to proceed to consider the remaining criteria for the visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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)). In the present case, the applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b). 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 6.5Reading 6.0Writing 6.0 Speaking 6.0 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. 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. 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 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 DronjicMember

Decision

Reasons for decision

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 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 DronjicMember

Ratio Decidendi

Legal Principle Established

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