1600181 (Migration)

[2016] AATA 4401

1600181 (Migration) [2016] AATA 4401 (19 September 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Sadia Afrin Hossain
Miss Parika Ahmed

CASE NUMBER:  1600181

DIBP REFERENCE(S):  BCC2010/259127

MEMBER:Antoinette Younes

DATE:19 September 2016

PLACE OF DECISION:  Sydney

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

Statement made on 19 September 2016 at 3:19pm

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 28 October 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 28 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). 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 applicants appeared before the Tribunal on 4 August 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. 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).

7. In the visa application, the applicant indicated that she had undertaken an English test result within the last 24 months. Specifically she noted that she had sat for an IELTS test on 26 June 2010 and that her language ability is “competent”.  The applicant did not provide a reference number for the test or a copy of the test. The delegate found that the applicant did not satisfy the requirements of cl.886.223.

8. In the course of the hearing, the Tribunal discussed with the applicant and she confirmed that she has not provided evidence that she meets the English requirements. The applicant gave evidence that she has sat for 12 IELTS tests, the last one being in March 2016 but she did not score 6 in each of the four components of the test. The Tribunal explained to the applicant that unless she can provide evidence that she meets the English language requirement, the Tribunal could affirm the delegate’s decision to refuse to grant to the visa. The applicant told the Tribunal that she has been a single mother for a number of years and has been working very hard. She stated that she gets very anxious when she has to sit the test.

9. The Tribunal noted that she has recently provided evidence that she intends to sit for an IELTS test on 20 August 2016. The Tribunal granted the applicant until 15 September 2016 to provide evidence that she meets the English requirements. The Tribunal explained to the applicant that unless she can obtain six in each component of the IELTS, the Tribunal would affirm the delegate’s decision.

10. On 15 September 2016, the Tribunal received from the applicant the IELTS results, dated 20 August 2016 and 19 March 2016. The test report form for the of 19 March 2016 shows that the applicant scored 6.5 for listening, 5.5 for reading, 6 for writing, 6.5 for speaking and her overall band score was 6.  In relation to the test of 20 August 2016, the applicant scored 6.5 for listening, 5.5 for reading, 5.5 for writing, 7 for speaking, and her overall band score was 6. Therefore, the applicant did not score in the IELTS tests at least 6 for each of the 4 test components and consequently the Tribunal finds that the applicant does not have competent English as required by cl.886.213. The Tribunal has given regard to the applicant’s explanations, however there is no evidence before the Tribunal that the applicant satisfies cl.886.213.

11. In conclusion, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

12. 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 this is the only relevant subclass in this case, the decision under review is affirmed.

    DECISION

13. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Antoinette Younes
    Senior Member