1601286 (Migration)

[2016] AATA 4796

1601286 (Migration) [2016] AATA 4796 (8 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ka Jing Ku

CASE NUMBER:  1601286

DIBP REFERENCE(S):  BCC2015/686908

MEMBER:Alison Mercer

DATE:8 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 08 December 2016 at 5:39pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) – Subclass 485 – English language proficiency – Completed schooling in Australia – Specified passport – Specified test not undertaken three years prior to application – Not achieved required scores – Formative years in Australia – Ministerial intervention

LEGISLATION

Migration Act 1958, s 351

Migration Regulations 1994, cl 485.212, cl 485.212, r 1.15C

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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 3 March 2015. Visa Class VC contains Subclass 485. (For visa applications made before 1 July 2013, there is also a Subclass 487, however that subclass is not relevant to the present matter.) The criteria for the grant of a Subclass 485 visa are set out in Part 485 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 the visa on 19 January 2016 because the applicant did not have the required English language proficiency.

4. The Tribunal received a review application from the applicant on 4 February 2016, which was accompanied by a copy of the delegate’s decision and a range of supporting documents including the following:

• copy of biodata pages of the applicant’s East Timorese passport;

• letter from Gill Gray, Principal of Coral Park Primary School, dated 2 February 2016, confirming that the applicant attended school there between October 2001 and December 2004, completing grade 6 there, and that she was taught in English;

• letter from Ms K Shiel (Assistant Principal) and Mrs L Jordan (Student Records) of Hampton Park Secondary College, dated 2 February 2016, confirming that the applicant did her secondary schooling there in English, completing year 12 in December 2010;

• Victorian Certificate of Education (VCE) awarded to the applicant in December 2010, certificate of appreciation for the applicant’s contribution as College Captain, and valedictory certificate awarded by Hampton Park Secondary College;

• Deakin University Achievement Award presented to the applicant on 7 October 2010;

• Australian Defence Force 2010 Long Tan Leadership and Teamwork Award presented to the applicant;

• Letter from Dr John Duncan, College Director/Principal, Deakin College, dated 4 February 2016, confirming that the applicant was enrolled there (when it was known as the Melbourne Institute of Business and Technology, or MIBT) between March 2011 and February 2012, during which time she successfully completed a Diploma of Health Sciences, plus academic transcript;

• Deakin University Graduation Statement for the applicant for Bachelor of Exercise and Sport Science, completed 9 October 2014;

• Letter from Nicole Bourke, Heart of Pilates, dated 2 February 2016, confirming that the applicant has worked for her for 2 years as a personal trainer and was now 2IC (second in charge) due to her work ethic and ability. Ms Bourke further states that the applicant has an extremely highly level of English and would be an asset to Australia;

• Letter from Len Fletcher, Store Manager at Ritchie’s Store, Narre Warren, dated 29 January 2016, confirming that the applicant worked there between 2011 and 2014 as a customer service operator.  Mr Fletcher states that the applicant speaks fluent English and was very honest and punctual;

• Undated letter from Jarrod Martin, Fitness Director, Goodlife Wantirna, confirming that the applicant had been operating a licence to Good Life Health Clubs in Wantirna in the last 12 months, running her own business within their facilities.  Her sessions ranged from exercise rehab, physiology and programming for personal training and individual clients to small groups and practical education for members; and

• Letter from the applicant dated 3 February 2016 stating that she understood that for certain visa subclasses, applicants could apply for exemptions to the English proficiency requirement if they had completed 5 years of study at secondary school level or higher in English or held a specified passport.  She states that she has completed primary, secondary and tertiary education in Australia, in English, and this amply demonstrated that she had the required level of English.  In addition, she had been active in various leadership and extra-curricular activities during her studies, and had lived continuously in Australia since 2001, when she was a young child.

1. The applicant appeared before the Tribunal on 25 October 2016 to give evidence and present arguments.

2. The applicant confirmed the contents of her written statement, and confirmed that she arrived in Australia aged 9 and had been here continuously for 15 years.  The applicant said that while her parents remained in East Timor, along with 1 younger sister, she and her 2 older sisters had lived in Australia for 15 years. One of her older sisters had been granted permanent residence on the basis of sponsorship by her employer, the Alfred Hospital, while the other sister had obtained a skills assessment and was in the process of applying for permanent residence.  The applicant said that she lived with her sisters and had always worked to support herself.  She was currently employed as an Exercise Scientist at the Alfred Hospital on a casual basis, although her hours were presently full-time.  In relation to her subclass 485 visa application, the applicant said that she did not provide a new set of English results when requested to do so as she believed that having been granted a bridging visa, the next step was for her to be granted a subclass 485 visa.  She firmly believed that she had the required English level given she had essentially grown up in Australia and successfully completed primary, secondary and tertiary studies here.

3. The Tribunal discussed with the applicant its view that cl.485.212 and r.1.15C confined the Tribunal’s consideration to a specified English test undertaken by her in the 3 years immediately before the day on which she made her visa application, and in relation to which she achieved specified scores. It noted that she had provided an International English Language Testing System (IELTS) test result form from 11 October 2014 to the Department, which was a specified test, but that she had not achieved the required scores of at least 6 in each of the 4 test components. It undertook to consider her case carefully but noted that it could not overlook this requirement and that this was not a visa subclass in which having completed secondary or tertiary studies in English could substitute for having a specified passport (which did not include an East Timorse passport) or achieving a specified score in a specified English test in the 3 years immediately preceding her visa application.

4. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that when the application was made, it was accompanied by evidence that the applicant had competent English.

2. Competent English is defined in r.1.15C. It provides that:

   (1)A person has competent English if:

   (a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and

   (b)the person is an applicant for a visa; and

   (ba)…; and

   (bb)… the test was conducted in the 3 years immediately before the day on which the application was made; and

   (c)the person achieved a score specified in the instrument.

   (2)A person also has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.

3. The relevant instrument is IMMI 15/005. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such, r.1.15C(2) is not met. For r.1.15C(1)(a) and (c), the Minister specified a range of English tests: the IELTS test, the Occupational English Test (OET), TOEFLiBT or Pearson Test of English Academic (PTE Academic).

4. The applicant did not claim to have undertaken any of the English tests specified above except for an IELTS test, undertaken on 11 October 2014, in which she obtained a score of less than 6 in 1 of the 4 test components. The Tribunal is satisfied that IMMI 15/005 specifies that for an IELTS test for these purposes, the specified scores are at least 6 in each of the 4 test components. Accordingly, the Tribunal must find that the applicant has not achieved the specified score to satisfy r.1.15C(c). It thus finds that she cannot satisfy r.1.15C as a whole and therefore does not meet cl.485.215. As discussed with the applicant at the hearing, r.1.15C(1)(bb) confines the Tribunal to considering only a specified test undertaken in the 3 years prior to her visa application, in which she achieved the specified scores. Accordingly, any English test now undertaken by the applicant cannot satisfy cl.485.215 even if she were to achieve the specified score. Furthermore, as also discussed with the applicant, there is no discretion in the subclass 485 visa to waive the requirements of cl.485.215 or to find that it is met by alternative evidence (such as the undisputed evidence provided by the applicant of her completion of primary, secondary and tertiary education in Australia in English and her residence here for 15 years).

5. As such, the Tribunal must find that the application, when made, was not accompanied by evidence that the applicant has competent English as defined in r.1.15C(1).

6. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

7. Finally, the Tribunal has considered whether to refer the case to the Department for consideration by the Minister pursuant to section 351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Departmental guidelines for Ministerial intervention can be found at: >

   The Tribunal has considered the applicant’s case and the Ministerial Guidelines relating to the Minister's discretionary power, as set out on the Department’s website.  It is satisfied that the applicant’s case does not fall within any of the examples given under the heading of ‘Inappropriate to Consider.’ 

8. Having considered the examples provided under the heading ‘Unique or Exceptional Circumstances,’ the Tribunal gives weight to the fact that the applicant has been in Australia since the age of 9 continuously as the holder of various student visas, has completed primary, secondary and tertiary education here and is now professionally employed, having worked throughout her studies and having been an active participant in extra-curricular and leadership activities. It gives further weight to the fact that while the applicant’s parents and 1 younger sibling reside in the country of her birth, East Timor, the applicant has lived in Australia with her 2 older sisters for 15 years, 1 of whom is now a permanent resident and the other who is in the process of applying for permanent residence.

9. The Tribunal notes that it appears that, but for her failure to achieve 6 in only 1 of the 4 test components of her IELTS test undertaken in October 2014, it appears that she would have satisfied the requirements for the grant of a subclass 485 visa. 

10. The Tribunal has formed the view that the applicant’s integration into the Australian community and work force, her having spent her formative years in Australia and been educated in English, does give rise to considerations involving compassionate circumstances for her and her Australian siblings, and the unintended and unfair consequences of the legislation in her particular care. As such, the Tribunal will refer the matter to the Minister.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Alison Mercer
Member