Le (Migration)

[2024] AATA 2959

Le (Migration) [2024] AATA 2959 (6 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Luu Thien Dinh Le

CASE NUMBER:  2212946

HOME AFFAIRS REFERENCE(S):          BCC2020/1667654

MEMBER:Karen McNamara

DATE:6 August 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Training (class GF) Training visa, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

·     cl. 407.212 of Schedule 2 to the Regulations

Statement made on 06 August 2024 at 1:29pm

CATCHWORDS
MIGRATION – Training (Class GF) visa – Subclass 407 (Training) – English language proficiency – functional English – prescribed test results provided to tribunal – decision made without hearing necessary – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 5(2)(b), 65
Migration Regulations 1994 (Cth), r 5.17(a), Schedule 2, cl 407.212, Schedule 4, criterion 4001

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 18 August 2022, to refuse to grant Mr Luu Thien Dinh Le (the visa applicant) a Training (Class GF) Subclass 407 visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The primary criteria must be satisfied by at least one member of the family unit at the time a decision is made on the application.  Any other member of the family unit who is an applicant for a visa of this subclass need satisfy only the secondary criteria.

3. The applicant applied for the visa on 2 June 2020. The delegate refused to grant the visa on the basis that the applicant did not satisfy the requirements of primary criterion cl.407.212 of Schedule 2 to the Regulations, because they did not provide the prescribed evidence specified by the Minister in an instrument in writing relating to their English language proficiency.

4. The applicant’s review application was constituted previously to a different Member, who is no longer available to finalise the application.  Hearings were scheduled by the former Member in May and June 2024 and the former Member requested that the applicant provide additional documentary evidence in support of the application. The applicant’s review application was reconstituted to the current Member on 4 July 2024.

5. Having consideration to the totality of evidence before it (as presently constituted), the Tribunal did not consider a further hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, including the evidence given by the applicant before the previously constituted Tribunal.

6. The applicant was represented in relation to the review.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The Subclass 407 visa is designed to enable Australian organisations and Government agencies (including foreign government agencies in Australia) to sponsor overseas persons to participate in specific occupational training activities, including classroom-based professional development activities.

9. The issue on review is the same as the substantive issue on which the visa was refused:  a delegate of the Minister was not satisfied that the applicant met the English language proficiency requirement: cl.407.212.

10. Among other things, to satisfy the primary criteria the applicant must meet the requirements of cl.407.212 of Schedule 2 to the Regulations at the time a decision is made on the application relating to their English language proficiency; it requires the applicant to have ‘functional English’ as defined in s 5(2) of the Act. 

11. Under paragraph 5.17(a) of the Regulations, for paragraph 5(2)(b) of the Act, the Minister specifies in IMMI 15/004 evidence that must be provided by an applicant for a subclass 407 visa to demonstrate their English proficiency.  Relevantly in this case, the applicant was required to provide prescribed evidence as specified by the Minister in a legislative instrument, which includes as an option a Pearson Test of English Academic (PTE Academic). 

12. To meet the cl. 407.212 criteria, a PTE Academic must show that the applicant achieved an overall band score of at least 30 based on the four test components of speaking, reading, writing, and listening in a test conducted not more than 12 months before lodging the visa application, or at the time of processing of the relevant application to migrate.  The applicant provided no such evidence in support of the visa application made on 2 June 2020 and the visa was refused because the applicant did not satisfy primary criterion cl. 407.212.

13. At the hearing on 12 June 2024, the former Member requested that the applicant provide evidence of their English language proficiency.  On 22 July 2024, the Tribunal received an email from the applicant with a bundle of documents attached, including a PTE which is one of the types of prescribed evidence specified by the Minister in IMMI 15/004. 

14. The Tribunal is satisfied that the applicant has provided evidence as prescribed in IMMI 15/004, that being a PTE Academic, confirming that they undertook a test on 19 July 2024 that is valid to 19 July 2026, and achieved an overall test score of 36; 36 for listening, 31 for reading, 33 for speaking and 39 for writing.

15. On the basis of the above, at the time of this decision the applicant meets the requirements of cl. 407.212 of Schedule 2 to the Regulations.

16. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

    DECISION

17. The Tribunal remits the application for a Training (class GF) Training visa, with the direction that the applicant meets the following criteria for a Subclass 407 visa:

    ·cl.407.212 of Schedule 2 to the Regulations

    Karen McNamara
    Member