Hussain (Migration)

This matter concerned an application for review by Mr. Hussain of a decision not to grant him a Skilled (Residence) (Class VB) visa, Subclass 886 (Skilled - Sponsored). The primary issue before the Tribunal was whether Mr. Hussain met the English language proficiency requirements stipulated by clause 886.213 of the Migration Regulations 1994. The Tribunal also considered its jurisdiction in relation to secondary applicants who were overseas at the time the application for review was lodged.

The Tribunal was required to determine whether Mr. Hussain possessed "competent English" as defined by regulation 1.15C. This regulation outlines two ways to satisfy the requirement: either by undertaking a specified language test within two years of the application date and achieving a specified score, or by holding a passport of a type specified by the Minister. The Tribunal also had to consider the jurisdiction concerning the secondary applicants, specifically whether they were offshore when the review application was filed, which would impact the Tribunal's ability to hear their claims.

The Tribunal found that Mr. Hussain did not satisfy regulation 1.15C(b) as he did not hold a passport of a type specified by the Minister. Regarding the language test, Mr. Hussain provided evidence of two IELTS tests. The test taken on 14 January 2012 did not meet the requirements as he failed to achieve the minimum score of 6 in reading and writing. The test taken on 2 February 2013 did meet the required scores, however, it was conducted more than two years prior to the visa application date of 19 January 2012, thus falling outside the specified period. Consequently, the Tribunal was not satisfied that Mr. Hussain had demonstrated competent English. Furthermore, the Tribunal determined it lacked jurisdiction over the secondary applicants as they were offshore when the review application was lodged, meaning their review application was not properly made under section 347(3) of the Migration Act 1958.

The Tribunal affirmed the decision not to grant the first applicant, Mr. Hussain, a Skilled (Residence) (Class VB) visa. The Tribunal also determined that it had no jurisdiction in relation to the review applications made by the secondary applicants.