MUTHU (Migration)

[2019] AATA 6465

MUTHU (Migration) [2019] AATA 6465 (19 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Meiyappan MUTHU

CASE NUMBER:  1817666

HOME AFFAIRS REFERENCE(S):          BCC2017/4065676

MEMBER:Wan Shum

DATE:19 November 2019

PLACE OF DECISION:  Sydney

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.189.233 of Schedule 2 to the Regulations.

Statement made on 19 November 2019 at 11:24am

CATCHWORDS
MIGRATION – Skilled Independent (Permanent) visa – Subclass 189 – evidence of having competent English provided – decision under review remitted

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15, 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 5 June 2018 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 (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 4 October 2017 and applied for the visa on 2 November 2017 nominating the skilled occupation of Electronics 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 (the Regulations). The delegate refused to grant the visa because the applicant did not provide evidence of having competent English and thus did not satisfy cl.189.223.

4. The applicant was represented in relation to the review by the same registered migration agent who assisted with his visa application.

5. The applicant appeared before the Tribunal on 19 November 2019 to give evidence and present arguments. The representative also attended.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has the English language proficiency for the visa.

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

9. ‘Competent English’ is relevantly defined in r.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.

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

11. On the visa application, under the section ‘Language ability’, details were provided of a PTE Academic test undertaken on 5 April 2017 with reference number PTE000341501. It was claimed that the applicant’s language ability was proficient.

12. However, no test results were submitted to the Department and the Department made two requests for copies of the test report form. In response to the second request, an email from the applicant to his migration agent with his Login ID and password for the Pearson VUE website was forwarded. It appears that the delegate did not consider it appropriate to check the test results from the Pearson VUE website for privacy reasons and the visa was refused on the basis that the information was requested but not provided.

13. On review, the applicant’s representative stated that he had provided copies of the test report form to the Department and that he had also provided them to the Tribunal. However, a check of the Departmental file confirms that the test report forms were not separately submitted. Nor were they given to the Tribunal. During the hearing, the Tribunal sighted copies of the test results for a test taken on 5 April 2017 and in November 2016. In both tests he achieved over 50 in each of the test components. He told the Tribunal that he had undertaken a number of tests in an attempt for higher points under the Points Test.  The Tribunal has had the results the 5 April 2017 test verified online which confirm that the applicant scored over 50 in each of the test components.

14. The applicant was invited to apply for the visa on 4 October 2017. The PTE Academic test undertaken on 5 April 2017 was thus conducted in the 3 years immediately before the date of invitation to apply. In this test he achieved 75 in listening, 76 in reading, 90 in speaking and 72 in writing. The Tribunal finds that, at the time of invitation to apply, the applicant had competent English.

15. The applicant therefore satisfies cl.189.223.

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

    DECISION

17. 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.

    Wan Shum
    Member