Hussain (Migration)

[2017] AATA 661

Hussain (Migration) [2017] AATA 661 (1 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Muhammad Irfan Hussain
Ms Arooj Zahra
Mr Muhammad Ahmad Hussain
Ms Hania Irfan

CASE NUMBER:  1600161

DIBP REFERENCE(S):  BCC2012/60495

MEMBER:Miriam Holmes

DATE:1 May 2017

PLACE OF DECISION:  Melbourne

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

The Tribunal has no jurisdiction in relation to the review application made by the secondary applicants (Ms Zahra, Mr M A Hussain and Ms H Irfan).

Statement made on 01 May 2017 at 4:44pm

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled - Sponsored) – English language proficiency – IELTS test – English language requirements not met during specified period

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, r 1.15C, cl 886.213

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 18 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 19 January 2012. 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 as required by cl.886.213.

4. The first named applicant, Mr Hussain, appeared on behalf of all the applicants before the Tribunal on 7 November 2016 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.886.213. Regulation 1.15C provides that a person has ‘competent English’ if the person:

   (a)satisfies the Minister that:

   (i)the person undertook a language test, specified by the Minister in writing for this subparagraph; and

   (ii)the test was conducted in the 2 years immediately before the day on which the application was made; and

   (iii)the person achieved a score specified in the instrument; or

   (b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

7. The relevant instrument is IMMI15/005.

8. The applicant is the holder of a passport from Pakistan. In the present case, there is no evidence that the applicant has held a passport of a type specified by the Minister, and as such r.1.15C(b) is not met.

9. Therefore, to satisfy cl.886.213 the applicant must meet r.1.15C(1)(a) by achieving a specified score in a specified test in the 2 years immediately before the day on which the application was made.

10. The Tribunal finds that the applicant undertook an IELTS test on 14 January 2012 and the applicant achieved the following scores:

    Listening 6

    Reading 5

    Writing 5.5

    Speaking 6.5

    Overall 6

11. The Tribunal finds that the applicant undertook an IELTS test on 2 February 2013 and he achieved the following scores:

    Listening 6.5

    Reading 7

    Writing 6

    Speaking 6.5

    Overall 6.5

12. In relation to the test undertaken on 14 January 2012 the Tribunal finds that the applicant did not achieve the specified score to meet the competent English language requirements. He was required to achieve a minimum score of 6 in each of the four test components and he did not reach the minimum score in respect of reading and writing. Therefore the Tribunal is not satisfied that the applicant has competent English as required by cl.886.213.

13. In relation to the test undertaken on 2 February 2013, the applicant met the required scores, however it was not undertaken in the specified period that is, in the 2 years immediately before the day on which the application was made. The visa application was made on 19 January 2012 and the test was undertaken on 2 February 2013. Therefore the Tribunal is not satisfied that the applicant has competent English as required by cl.886.213.

14. The applicant told the Tribunal that between 2004 and 2013 he undertook the IELTS test 25 times. He has consulted with different agents and lawyers who sought payment of between $5000 to $8000 to assist him. He was doubtful that he met the English language requirements but he had no options. He repeatedly just underscored when undertaking the IELTS test. On 8 December 2015 he applied for a sc187 visa for himself and his whole family and he is sponsored by an employer and currently working for his sponsor. The visa application is still pending. The Tribunal notes that its decision in this case only relates to the sc886 visa application and that the Department will continue to consider the pending sc187 visa application.

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

16. In light of the findings above, the Tribunal is not satisfied that the applicant meets the requirements in cl.886.213.

17. 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 will be affirmed.

18. The Tribunal discussed with Mr Hussain, whether the Tribunal had jurisdiction in respect of the secondary applicants. Mr Hussain confirmed all the secondary visa applicants are overseas and his wife has been overseas since February 2012. In the circumstances, the Tribunal finds that it does not have jurisdiction in relation to the secondary applicants as they were offshore at the time the application for review was lodged. Therefore the review application by the secondary applicants was not properly made and does not meet the requirement in s.347 (3).

    DECISION

19. The Tribunal affirms the decisions not to grant the first named applicant a Skilled (Residence) (Class VB) visa.

20. The Tribunal has no jurisdiction in relation to the review application made by the secondary applicants (Ms Zahra, Mr M A Hussain and Ms H Irfan).

    Miriam Holmes
    Senior Member