Jakesane (Migration)

[2021] AATA 4195

Jakesane (Migration) [2021] AATA 4195 (26 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sandeep Kumar Jakesane

CASE NUMBER:  2013058

HOME AFFAIRS REFERENCE(S):          BCC2019/119750

MEMBER:Tim Connellan

DATE:26 October 2021

PLACE OF DECISION:  Melbourne

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 26 October 2021 at 4:10pm

CATCHWORDS
MIGRATION – Skilled – Independent (Permanent) (Class SI) visa – Subclass 189 (Skilled – Independent) – English language proficiency – test result did not include photograph of applicant – valid result for another test provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 189.223

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 31 July 2020 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 was invited to apply for the visa on 11 January 2019 and applied for the visa on 21 January 2019 nominating the skilled occupation of Computer Network and Systems Engineer.

3. The 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 because the applicant did not satisfy cl 189.223 because the delegate found the CAE test result provided as evidence of English language proficiency was not valid as it did not include a photograph of the applicant.

4. The applicant appeared before the Tribunal on 7 October 2021 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

6. At the hearing the applicant was granted an extension of time to provide further evidence of his being able to satisfy cl. 189.223.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether at the time of invitation to apply for the visa, the applicant had competent English as defined.

   English language proficiency

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

10. ‘Competent English’ is relevantly 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.

11. The applicable language tests, scores and passports are specified in IMMI 15/005.

12. The applicant was not the holder of a passport that satisfies the requirements of subregulation 1.15C(2) and was therefore required to satisfy the requirements of subregulation 1.15C(1) to demonstrate he had competent English.

13. With his application, the applicant provided evidence in the form of a Cambridge English (CAE) test, which is the test result the delegate found to be invalid.

14. However, in a post hearing submission, the applicant provided a range of evidence including the results of a Test of English as a Foreign Language internet based test (TOEFL iBT) taken 5 August 2017 which is in the three years immediately before the date of the invitation.

15. An applicant will have competent English as defined under regulation 1.15C if they can provide results of a TOEFL iBT in which they have achieved at least the following test scores: 12 for Listening (29 scored) 13 for Reading (27 scored) 21 for Writing (30 scored) and 18 for Speaking (26 scored).

16. Given the scores achieved, the Tribunal is satisfied the applicant has demonstrated that at the time of invitation to apply for the visa the applicant had competent English.

17. The applicant therefore satisfies cl 189.223.

18. Given the findings above, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria.

    DECISION

19. 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

    Tim Connellan
    Member