Kohler Holma (Migration)

[2018] AATA 4887

Kohler Holma (Migration) [2018] AATA 4887 (9 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Lina Therese Kohler Holma

CASE NUMBER:  1711628

DIBP REFERENCE(S):  BCC2016/3219581

MEMBER:Bridget Cullen

DATE AND TIME OF

ORAL DECISION AND REASONS:          9 October 2018 at 2:20 pm (QLD time)

DATE OF WRITTEN RECORD:                15 October 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 Skilled Independent – evidence of competent English – did not provide specific test – IELTS test completed outside time frame – misunderstanding nature of testing requirements – letters of reference – Ministerial intervention requested – decision under review affirmed


LEGISLATION
Migration Regulations 1994 (Cth), r 1.15C

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 25 May 2017 to refuse to grant the visa applicant a Skilled Independent (Permanent) Subclass 189 visa under the Migration Act 1958 (the Act).

2. At the hearing on 9 October 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The Department refused to grant the visa because it considered that, at the time of the invitation to apply for the visa, regulation 1.15C of the Migration Regulations 1994 provided a range of possible ways that an applicant could demonstrate to the Department that they had competent English. The Department found that the applicant did not satisfy regulation 1.15C.

4. The applicant was invited to apply for a Skilled Independent (Permanent) (class SI) Skilled – Independent (subclass 189) visa on 28 September 2016.  The applicant lodged the application for the visa the same day as she received the invitation to apply.  In support of the applicant's claims that she had satisfactorily demonstrated she was competent in English, she uploaded two documents along with her application to the Department.  These consisted of a letter from the English Language Company, dated 15 April 2016, and a certificate certifying “Excellence in Teaching” the English language, dated 29 May 2015.    

5. The Department sent a natural justice letter to the applicant, asking her to submit information that she complied with regulation 1.15C.  The applicant provided information that she had obtained advice from Speech Pathology Australia (which nominated her for the visa), and the applicant noted an IELTS test reference number.  The Department was ultimately unable to find a specific reference in relation to the IELTS test number. 

6. During the hearing, the Tribunal discussed with the applicant that regulation 1.15C prescribed specific ways in which the applicant was required to demonstrate her English proficiency.  Although it is the case that the applicant has now completed successfully the IELTS test, regulation 1.15C requires the IELTS test to have been completed in the three years immediately before the day on which the applicant lodged her application.  As such, even though it is clear that the applicant has successfully completed the IELTS test, it falls outside the permissible time frame.  

7. The further difficulty in relation to the applicant's meeting this regulation 1.15C is that, although she did provide the English Language Company test to the Department in conjunction with her application, the English Language Company test is not one of the specific tests that is provided for in regulation 1.15C.  There is no provision within regulation 1.15C that encompasses a test of the variety that was provided by the applicant in conjunction with her visa application. 

8. There is significant information before the Tribunal which indicates that although the applicant has not complied with regulation 1.15C in form, she complies in substance.  As was explained to the applicant at the commencement of the hearing, the Tribunal is bound by the law and regulations as set by the Government.  There is no discretion afforded to the Tribunal to overlook any of the requirements that are contained in regulation 1.15C. 

9. The applicant confirmed during the course of the hearing that she does not hold a valid passport issued by the United Kingdom, United States of America, Canada, New Zealand, or the Republic of Ireland, and on that basis, is not exempted, would need to complete the test as outlined in regulation 1.15C.  Because the Tribunal finds that the applicant has not met regulation 1.15C, the Tribunal is duty-bound to affirm the decision as made by the Department.  

10. In the circumstances before it, however, the Tribunal considers it appropriate to refer the matter to the Minister, with encouragement to set aside the lack of strict compliance with the form of regulation 1.15C, in the circumstances that are presented in this particular case. 

11. Although the applicant has not complied with the condition in the matter as prescribed by the legislature, she has complied in substance.  The Tribunal notes that the applicant is, and has been, working as a professional speech/language pathologist. 

12. The applicant endeavoured to apply for the visa correctly, and it is only through her misunderstanding of the nature of the testing requirements that led to her not meeting regulation 1.15C.  She has taken steps to try and meet the criterion, which, unfortunately, fall outside the prescribed timeframe, as the regulation requires that the test be completed within a period of time prior to application.

13. The Tribunal has also had regard to the evidence given by the applicant’s witness, Ms Kylie Wall, a Senior Speech Language Pathologist at the Royal Brisbane and Women's Hospital, as well as a PhD candidate at the University of Queensland in the same field.  The Tribunal has before it Ms Wall's letter, indicating that she has known the applicant professionally and personally for 15 years.  Ms Wall’s letter specifically indicates the breadth of the contribution that the applicant has made to the profession of speech pathology.  Ms Wall gave evidence at the hearing that the applicant has travelled extensively, and has experience working in both English and non-English-speaking countries, and clearly has the ability to speak English at a very high level. 

14. In addition, the Tribunal has before it a letter of support from Dr Willem Van Steenbrugge, PhD, from Flinders University.  Dr Van Steenbrugge unreservedly confirms that the applicant has shown an excellent command of English, close to native-like proficiency.  There is a further letter, from Senior Occupational Therapist, Ms Sandra Wilksch, dated 2 October 2018, indicating that Ms Wilksch considers the applicant to have a very high level of English command, and further attests to all of the other positive qualities that the applicant possesses. 

15. The Tribunal will provide a copy of these letters of reference to the Minister with its referral, for his consideration.

    DECISION

16. The Tribunal affirms the decision under review.

    Bridget Cullen
    Member