Ghani (Migration)

[2023] AATA 2570

Ghani (Migration) [2023] AATA 2570 (17 July 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Abdullah Ghani

REPRESENTATIVE:  Mr Alasdair Colin Dougall

CASE NUMBER:  2109642

HOME AFFAIRS REFERENCE(S):          BCC2018/5135730

MEMBER:Katie Malyon

DATE:17 July 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

·cl 189.223 of Schedule 2 to the Regulations.

Statement made on 17 July 2023 at 4:46pm

CATCHWORDS

MIGRATION – Skilled Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – occupation of Accountant (General) – English language proficiency – English Advanced (CAE) test results disqualified – investigation of test centre malpractice at overseas agency – further valid Pearson (PTE) English test result provided – decision under review remitted          

LEGISLATION

Migration Act 1958, ss 57, 65, 360
Migration Regulations 1994, Schedule 2, cl 189.223; r 1.15

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 Home Affairs on 26 July 2021 to refuse to grant the applicant a Skilled - Independent (Permanent) (Class SI) (Subclass 189) (Skilled – Independent) visa under s 65 of the Migration Act 1958 (Cth) (the Act).  This visa is designed for skilled applicants who have submitted an expression of interest and received an invitation to apply for the visa.

2. The applicant, Pakistani national Abdullah Ghani, was invited to apply for the visa on 11 November 2018.  He applied for the visa on 19 November 2018 and nominated the skilled occupation of Accountant (General) ANZSCO 221111.

3. Criteria for the grant of a Subclass 189 visa in the Points-tested stream are set out in Part 189 of Schedule 2 to the Migration Regulations 1994 (Cth) (the Regulations). The delegate refused to grant the visa on the basis Mr Ghani did not satisfy cl 189.223 of the Regulations because his Cambridge English: Advanced (CAE) test results had been disqualified following a malpractice investigation by Cambridge English administrators in November 2018.  Mr Ghani had undertaken the CAE test on 21 July 2018 whilst holidaying in the Middle East with his sister.  A copy of the delegate’s decision was provided to the Tribunal.

4. In reaching its decision, the Tribunal did not consider a hearing to be necessary as it was able to find in favour of Mr Ghani on the basis of the material before it pursuant to

   
   

   s 360(2)(a) of the Act.

5. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant had competent English at the time of invitation to apply for the visa on 11 November 2018.

   English language proficiency

7. Clause 189.223 requires that at the time of invitation to apply for the visa, the applicant had ‘competent English’.

8. The term ‘competent English’ is defined in reg 1.15C of the Regulations as follows:

   (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)for a person who was invited (or whose spouse or de facto partner was invited) by the Minister under the Regulations, in writing, to apply for the visa - the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb)…; 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.

9. The applicable language tests, scores and passports are specified in IMMI 15/005. Consistent with reg 1.15C of the Regulations and s 5E of IMMI 15/005, an applicant has ‘competent English’ if they have a PTE Academic test score of at least 50 in each of the 4 test components of listening, reading, writing and speaking.

10. As noted above, the delegate refused Mr Ghani’s Subclass 189 visa application on the basis that he did not satisfy cl 189.223 of the Regulations because the CAE test results undertaken on 21 July 2018 had been disqualified by Cambridge English and, consequently, the delegate was not satisfied that Mr Ghani had competent English as at the time of his invitation to apply for the visa. The Tribunal’s examination of the Department’s file confirms that all students who undertook a CAE test in Dubai in July 2018 were impacted by the disqualification of their results due to ‘test centre malpractice’.

11. On 9 June 2020, the Department wrote to Mr Ghani pursuant to s 57 of the Act advising him of the disqualification of his CAE test results. In response, Mr Ghani provided supporting documentation including a Statutory Declaration sworn 1 July 2020 explaining that he was not aware of the malpractice that occurred until he received the Department’s s 57 natural justice letter. He asserts that his CAE test results were valid both as at the time he was invited to apply for the visa and at the time he lodged his visa application. The Department, in its decision record, explains that because his CAE test results had been cancelled by Cambridge English, the delegate was unable to verify the results and identify Mr Ghani as the test taker. Further, in response to the Department’s s 57 natural justice letter, Mr Ghani also provided the results of a Pearson (PTE) English test dated 3 April 2019 confirming that he had scored at least 79 on each of the 4 test components of listening, reading, writing and speaking: as such, he had ‘superior English’ as that term is defined in reg 1.15EA of the Regulations and s 5J of IMMI 15/005. However, as noted by the delegate, this PTE test is dated after the invitation to apply for a Subclass 189 visa on 11 November 2018 and, consequently, was unable to be considered.

12. Relevant to this decision, the Tribunal notes that in support of his Subclass 189 visa application lodged with the Department, Mr Ghani provided a favourable Skills Assessment from Chartered Accountants Australia & New Zealand (CA ANZ) dated 8 May 2017.  The Skills Assessment expressly refers to the results of a PTE English language test which confirms that Mr Ghani had competent English as at the date of CA ANZ’s Skills Assessment.  Following constitution of this matter to the Member, the Tribunal wrote to Mr Ghani on 7 July 2023 and requested that he provide the Tribunal with a copy of the PTE English tests results referred to in CA ANZ’s Skill Assessment for its consideration. 

13. In response, the representative submitted a copy of Mr Ghani’s PTE Academic Score Report for a test undertaken on 1 February 2017.  The Tribunal has independently confirmed the probity of the PTE test results direct with Pearson Language Testing which reports that, in respect of his PTE test undertaken on 1 February 2017, Mr Ghani scored Listening 68, Reading 69, Speaking 68 and Writing 70: that is, he had scored at least 65 on each of the 4 test components and, as such, had demonstrated that he had ‘proficient English’ as defined in reg 1.15D of the Regulations and s 5H of IMMI 15/005 as at 1 February 2017. Pearson Language Testing’s response confirms that their verification process includes checking a candidate’s PTE ID, registration ID, scores, photographs and personal details.

14. Having regard to this evidence, the Tribunal is satisfied that not only did Mr Ghani undertake a PTE English test on 1 February 2017 which is within the 3 years immediately before 11 November 2018 when Mr Ghani was invited to apply for the Subclass 189 visa but also that the test results demonstrate that he had ‘competent English’ as at that date since the results that he achieved are actually at the higher standard of ‘proficient English’.

15. In light of the available evidence, the Tribunal finds that Mr Ghani had ‘competent English’ at the time of invitation to apply for the visa and that, accordingly, he satisfies cl 189.223 of Schedule 2 to the Regulations.

16. Given this finding, the appropriate course is to remit the visa application to the Minister to enable consideration of the remaining criteria.

    DECISION

17. The Tribunal remits the application for a Skilled - Independent (Permanent) (Class SI) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 189 visa:

    ·cl 189.223 of Schedule 2 to the Regulations

    Katie Malyon

    
    Member