Mariana (Migration)

[2017] AATA 1345

Mariana (Migration) [2017] AATA 1345 (3 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lie Lenny Mariana
Mr Edison Simawaty
Master Edward Yen
Miss Merry Yen

CASE NUMBER:  1703606

DIBP REFERENCE(S):  BCC2010/210811

MEMBER:Wan Shum

DATE:3 August 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Residence) (Class VB) visas.

Statement made on 03 August 2017 at 9:47am

CATCHWORDS
Migration – Skilled (Residence) (Class VB) visa – Subclass 886 – Required English language proficiency – Applicant did not achieve minimum score in multiple attempts

LEGISLATION
Migration Act 1958, ss 65, 361

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

CASES

Berenguel v MIAC (2010) 264 ALR 417

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 5 July 2013 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 24 May 2010. 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.

4. The applicants sought review of that decision and the Tribunal affirmed the decisions not to grant the applicants Skilled (Residence) (Class VB) visas on 21 October 2013.

5. The applicants appealed that decision to the Federal Circuit Court on 19 December 2014.

6. On 16 February 2017, the Court ordered, by consent, that the matter be remitted to the Tribunal to be redetermined according to the law. The Minister conceded that the Tribunal erred by failing to have regard to the applicants’ request that the Tribunal hear evidence from a witness under s.361(2) of the Act.

7. On 28 April 2017, the applicants were invited to a hearing scheduled for 25 May 2017. On 19 May 2017, the Tribunal received notification that the applicants had appointed a new representative. He requested access to documents and asked the Tribunal to reschedule the hearing as they were unable to make a written submission in support of the applicant without the material. The Tribunal agreed to reschedule the hearing to 7 June 2017.

8. On 30 May 2017, the Tribunal received a submission stating that the applicant had not attempted any IELTS tests while her application was before the Court. The applicant was unable to manage time for preparation of the test because she had to look after the children. The representative advised that the applicant had booked a test for 8 July 2017 and requested that the Tribunal await the results of that test. No requests were made to take oral evidence from a witness.

9. The first and second named applicants appeared before the Tribunal on 7 June 2017 to give evidence and present arguments. An interpreter in the Indonesian and English languages was present to assist when necessary. The applicant told the Tribunal that she had undertaken an IELTS test on 13 May 2017 and provided a copy of the results. This shows that she achieved 5 in three of the test bands and 4.5 in speaking. She knew she needed 6 in each test band to meet the visa requirements. The applicant said she needed more time to do the test because she needed more practise. She said her English is still not good enough. The Tribunal discussed when the outcome of the test booked for 8 July 2017 would be known, and advised that it would consider whether to await the results of that test and would inform her representative. The Tribunal agreed to allow until 21 July 2017 for the results and the representative was informed on 9 June 2017.

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. The issue in the present case is whether the applicant has competent English as required by cl.886.213. Regulation 1.15C(a) as it applies to this case provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Such a test may be conducted after the application was lodged, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417. Alternatively, a person has competent English if he or she holds a passport of a type specified by the Minister (r.1.15C(b)).

11. In the present case, the applicant does not hold a passport of a type specified and as such cannot satisfy r.1.15C(b).

12. In relation to r.1.15C(a), the applicant told the Tribunal at the hearing that she had recently undertaken an IELTS test and had booked a further test for 8 July 2017. The applicant provided the results of the test of 13 May 2017 which indicates that she received 5 in three of the test components and 4.5 in the fourth component. This does not satisfy the definition of competent English. She had previously presented 13 IELTS test results, taken between April 2009 and September 2013.

13. The applicant has requested further time to undertake the 8 July 2017 test. She said at the hearing that her English is still not good enough. She needed more time to do a test because she needs more practice. The Tribunal asked what she would do if she was unable to achieve the necessary scores in that test. She said she would sit another test. However, the applicant made this visa application in May 2010, over seven years ago, and the applicant has already attempted 14 IELTS test for the visa. Her representative had referred in his written submission to the applicant advising that she did not attempt to sit for an IELTS test while her application was before the court. The representative did not make any reference to the May 2017 test, but wrote that the applicant stated that she had to look after the children and was not able to manage time for the preparation of the test.

14. The Tribunal agreed to allow until 21 July 2017 to provide the results of the test booked for 8 July 2017. It notes that this would have been the 15^th test attempted by the applicant for this visa.

15. Nothing further has been provided to date. The Tribunal considers that, in the circumstances, it is appropriate to proceed to a decision having regard to all the English language test results provided to date. It is of the view that the applicant has had ample opportunity to attempt the English language tests and achieve the necessary scores. The Tribunal notes that she had undertaken a test as recently as 13 May 2017, the results of which were provided, indicating that she was unable to achieve the minimum test score in any of the four test components. It has considered her claim that she has not had enough time to practise, but is of the view that she has had sufficient time to practise and attempt the test since lodging the application around 7 years ago.

16. The applicant has not provided evidence that she has achieved the specified score in an IELTS test or OET. As the applicant holds a passport of Indonesia, which is not of a type specified by the Minister, she does not meet the requirements of r.1.15C.

17. She therefore does not have competent English as defined in r.1.15C and the Tribunal finds that she does not satisfy cl.886.213.

18. It follows that the applicant does not satisfy the criteria for the grant of a Subclass 886 visa. As this is the only relevant subclass in this case, the decisions under review will be affirmed.

    DECISION

19. The Tribunal affirms the decisions not to grant the applicants Skilled (Residence) (Class VB) visas.

    Wan Shum
    Member