1600076 (Migration)

[2016] AATA 4874

1600076 (Migration) [2016] AATA 4874 (5 April 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Md Anwarul Haque Dhali
Mrs Ferdousi Shilpi Akter
Miss Sumaiya Haque

CASE NUMBER:  1600076

DIBP REFERENCE(S):  BCC2010/560746

MEMBER:Bruce MacCarthy

DATE:5 April 2016

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 05 April 2016 at 11:00am

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled – Sponsored) – PTE Academic Test – IELTS test – Competent English

LEGISLATION
Migration Act 1958, s 65,
Migration Regulations 1994, r 1.15C, Schedule 2 cl 886.213

CASES
Berenguel v MIAC (2010) 264 ALR 417

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 21 December 2015 to refuse to grant the applicants Skilled (Residence) (Class VB) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 December 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). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused to grant the visas because the first named applicant (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 applicants were represented in relation to the review by their 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. At the hearing, the applicant confirmed that only he was seeking to satisfy the primary criteria for the grant of the visa.

7. 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)).

8. 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.

9. 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.

10. In support of his application for the visa, the applicant said that he had made a booking to undertake an IELTS test on 21 November 2015.  However, at the hearing, he told the Tribunal that he had not undertaken the test on that date because he had been ill at the time.  He said that he had undertaken 2 or 3 IELTS tests in the period since 15 December 2008 (the date 2 years before he lodged the application for the visa), but had not been able to achieve scores which would demonstrate that he had competent English.  He had recently sat for a “Pearson Test of English Academic” (PTE Academic) test.  This is a test which is specified for the purposes of applications lodged on or after 23 November 2014, but not for tests lodged, as in the present case, prior to 1 July 2012.  In any event, the applicant said that he did not achieve scores prescribed for the purposes of PTE Academic tests.

11. He said that he had recently realised that he could not demonstrate competent English on the basis of a PTE Academic, and had booked to undertake an IELTS test on 19 March 2016.  He said he expected the results of that test to be available to him on 1 April 2016.  In these circumstances, the Tribunal said that it would wait until 4 April 2016 for him to submit the results of the test and would make its decision on the basis of those results.  It said that if he failed to submit the results by 4 April 2016, it would presume that he had not achieved results that would establish that he had competent English.

12. On 18 March 2016, the applicant submitted the results of a PTE Academic test he undertook on 16 March 2016, but made no reference to any IELTS test conducted on that date. As noted above, the PTE Academic test is not specified for the purposes of the applicant’s application, lodged on 15 December 2010. Therefore, regardless of his scores in that test, those scores cannot establish that he has competent English as defined in r.1.15C(a).

13. As at the date and time of this decision, neither the applicant nor his agent has submitted the results of the IELTS test the applicant said he would undertake on 16 March 2016. Neither he nor his agent has contacted the Tribunal to seek an extension of the 4 April 2016 deadline. The Tribunal infers from this that, if the applicant did undertake an IELTS test on 16 March 2016, the results did not establish that he has competent English. In the absence of any other relevant evidence, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

14. In the application for the visa, 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. He confirmed this at the hearing. 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 the previous paragraph, that the applicant does not have competent English as defined in r.1.15C.

15. 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 a consequence, the other applicants do not satisfy the secondary criteria for the grant of a Subclass 886 visa. As Subclass 886 is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

16. The Tribunal affirms the decision not to grant the applicants a Skilled (Residence) (Class VB) visas.

    Bruce MacCarthy
    

    Member