Cho (Migration)

[2017] AATA 863

Cho (Migration) [2017] AATA 863 (31 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hyuna Cho

CASE NUMBER:  1605387

DIBP REFERENCE(S):  BCC2011/287356

MEMBER:Denise Connolly

DATE:31 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 31 May 2017 at 12:21pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 885 (Skilled – Independent) – English language proficiency – Does not have competent English

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, r 1.15C, Schedule 2, cl 885.213

CASES

Berenguel v MIAC (2010) 264 ALR 417
Habib v MIAC [2010] FMCA 450

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 April 2016 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 28 June 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 885, the criteria for which are set out in Part 885 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 appeared before the Tribunal on 20 April 2017 to give evidence and present arguments.

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.885.213. 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. 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 is a citizen of South Korea and does not hold a passport of a type specified. Therefore she does not satisfy r.1.15C(b).

8. For r.1.15C(a) the Minister has specified a score of at least ‘B’ in each of the four components of an Occupational English Language test (OELT). Thus, an applicant can satisfy r.1.15C(a) by achieving the specified score in either an IELTS or an OELT, in a test undertaken after the application has been made, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417, Habib v MIAC [2010] FMCA 450.

9. There is no evidence to suggest the applicant has undertaken an OELT test and achieved the specified score. She therefore does not satisfy the definition of competent English in r.1.15C(a)(ii).

10. Prior to the hearing the applicant provided to the Tribunal documents including evidence of her employment and qualifications. She provided IELTS test results and evidence that she had booked to sit another IELTS test on 28 May 2016. She also provided a written submission regarding her attempts to obtain evidence of competent English.

11. At the hearing the Tribunal explained the requirements of cl.885.213. The applicant acknowledged that she does not have evidence to demonstrate she meets the definition of competent English. She told the Tribunal that she has sat numerous IELTS tests, more than 10, but she has not been able to achieve 6 in each test component. She always scores less than 6 in the writing component. She asked for more time to sit another IELTS test. She indicated she gets very stressed when she sits the test and this affects her performance.

12. The Tribunal explained that it does not have any discretion to waive the requirement that she achieves the scores specified in the legislation. It explained to the applicant that it wanted to consider her past results before it agreed to give her more time to sit another English test, as it may form the view there is no utility in her sitting further tests. It explained that, if it did agree to wait for the applicant to sit another English test, it would only wait for one test because the applicant made her visa application 6 years ago and, in its view, she has had a reasonable period to obtain evidence of competent English if she has it.

13. After the hearing the applicant provided to the Tribunal results for several IELTS tests undertaken in 2016 and 2017. The results confirm that the applicant has not been able to achieve at least 6 for the writing component, however there were occasions when she achieved 5.5. On the basis of the results, in fairness, the Tribunal agreed to give the applicant one more opportunity to sit another IELTS test. It wrote to her on 21 April 2017 and advised that it had decided to postpone making its decision to allow her to sit another IELTS test. The Tribunal agreed to wait until close of business 29 May 2017 for the applicant to provide further evidence regarding her English language proficiency. It explained that it would then proceed to make its decision on the basis of the evidence before it. The Tribunal explained that it would not agree to wait for the applicant to sit further tests after that date.

14. On 29 May 2017 the applicant wrote to the Tribunal and provided her IELTS test results for a test undertaken on 13 May 2017 in which she achieved only 5.0 in the writing component. She asked the Tribunal to postpone its decision for her to sit another test. The Tribunal considered this request but formed the view that the applicant has had ample time to obtain this evidence, and her results for numerous English tests indicate she is not able to achieve the required results. It has formed the view that there is no utility in providing the applicant with further time as, given her past results including her most recent scores, it is not likely that she will achieve the required results in the foreseeable future. The Tribunal wrote to the applicant and explained that it would not agree to postpone its decision any longer.

15. Having regard to all of the applicant’s IELTS test results provided to the Department and the Tribunal, the Tribunal is not satisfied the applicant has achieved an IELTS test score of at least 6 for each of the 4 test components in any one of those tests. The Tribunal is therefore not satisfied that the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components and accordingly she has not provided evidence that she meets the definition of competent English as set out in r.1.15C(a)(i).

16. The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C(a).

17. On the basis of the above, the applicant does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

18. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Denise Connolly
    Member