Ranatunga (Migration)

[2022] AATA 1287

Ranatunga (Migration) [2022] AATA 1287 (4 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Dushantha Anjana Ranatunga
Mrs Manori Nisansala Ranatunge Lorenzu Hewage
Master Methuja Dahamsath Ranatunga
Miss Kiyana Javenjala Ranatunga

CASE NUMBER:  2101563

HOME AFFAIRS REFERENCE(S):          BCC2017/2626304

MEMBER:Sean Baker

DATE:4 May 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

Statement made on 04 May 2022 at 9:41am

CATCHWORDS
MIGRATION – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 (Employer Nomination Scheme) – temporary residence transition stream – sports coach or instructor – English language proficiency – bogus document – verification of test results showed different results than version provided with visa application – application refused for second time after previous remittal – members of family unit – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 5(1), 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 186.222

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 25 January 2021 to refuse to grant the applicants Employer Nomination (Permanent) (Class EN) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 July 2017. At the time of application, Class EN contained one subclass: Subclass 186 (Employer Nomination Scheme).

3. The criteria for the grant of a Subclass 186 visa are set out in Part 186 of Schedule 2 to the Migration Regulations 1994 (Cth) (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. Applicants seeking to satisfy the primary criteria must meet the ‘Common criteria’, as well as the criteria of one of three alternative visa streams: the Temporary Residence Transition stream, the Direct Entry stream, or the Labour Agreement stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in the Temporary Residence Transition stream, to work in the nominated position of ‘Other Sports Coach or Instructor’ (ANZSCO 452317).

5. The delegate refused to grant the visas because the applicant did not meet cl 186.222 of Schedule 2 to the Regulations because the applicant did not provide evidence of having competent English.

6. The applicants appeared before the Tribunal on 3 May 2022 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Sinhala and English languages.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant has evidence of the relevant level of English language proficiency

   English language proficiency

9. At the time the visa application is made, an applicant in the Temporary Residence Transition stream must either have a defined level of English language proficiency, or be in a class of persons specified in legislative instrument IMMI 17/058: cl 186.222. For visa applications such as this one made on or after 1 July 2017 the level required is competent English.

10. ‘Competent English’ is defined in reg 1.15C of the Regulations. For both levels, a person will meet the definition if he or she either:

    ·undertook a specified language test in the three years preceding the visa application and achieved a specified score; or

    ·holds a specified passport.

    The relevant tests, scores and passports for these purposes are specified in legislative instrument IMMI 15/005 at item 5 (for visa applications lodged on or after 1 January 2015) which sets out the test scores required to satisfy the definition of competent English in reg 1.15C as:

    i. an IELTS test score of at least 6 in each of the four test components of listening, reading, writing and speaking; or

    ii. an OET test score of at least B in each of the four test components of listening, reading, writing and speaking; or

    iii. a TOEFL iBT test score with at least the following scores in the four test components: 12 for listening, 13 for reading, 21 for writing and 18 for speaking; or

    iv. a PTE Academic test score of at least 50 in each of the four test components of listening, reading, writing and speaking; or

    v. a Cambridge English: Advanced (CAE) test score of at least 169 in each of the four test components of listening, reading writing and speaking.

    IMMI 15/005 goes on to specify that for subregulation 1.15C(2), a valid passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, to a citizen of that country.

11. The applicant provided:

    ·      an IELTS test report form done in Sri Lanka in September 2014, 14LK003819RAND001G, with scores Listening 6.0; Reading 6.0; Writing 6.0 and Speaking 6.5, Overall band Score 6.0.

    ·     An IELTS test report form from April 2018 with scores of 5.0 in listening, 3.5 in reading, 4.5 in writing, and 6.0 in speaking.

    ·     a PTE Academic test score undertaken in November 2018 with scores of 36 in listening, 26 in reading, 40 in writing and 31 in speaking.

    ·      An IELTS test report form from July 2019 with scores of 4.0 in listening, 3.5 in reading, 5.5 in writing, and 6.0 in speaking.

12. At the hearing the applicant confirmed that he had not undertaken any other tests and these were the tests that were before me.

13. I noted to the applicant that I had also read his written submissions explaining why he believed the Sri Lanka test should be considered as well as a range of other materials.

14. I have had regard to the copy of the 2019 decision that the applicant provided with this tribunal application. I explained to the applicant that I had made a finding in that 2019 decision that the Sri Lankan 2014 test report form was a bogus document.

15. The reason for that finding was that the Department verified the 2014 test report form number on the IELTS online verification website ( The IELTS website returned a match with the test report number, with all details the same, including the applicant’s name, photograph, testing date and location, but differing test results (Listening 3.5; Reading 2.0; Writing 2.5; Speaking 6.5, Overall Band Score 3.5) than the version given by the applicant to the Department.

16. On the basis of this information, and having had regard to the information and explanations the applicant provided, I found in the 2019 decision that the Sri Lankan test report from was a bogus document. However, I found that the waiver should be exercised in relation to PIC 4020 as required by cl.186.213 and remitted the matter to the Department on that basis.

17. I explained to the applicant at the hearing that I may find that the Sri Lankan test report is a bogus document and therefore give that no weight as establishing that he has achieved the required score in that September 2014 IELTS test, and instead find that the score achieved in that IELTS test were those that were recorded on the IELTS website under that test report form number.

18. The applicant responded by acknowledging the information I had given him and saying that he had tried to find out what had happened from the IELTS testing body but because his query was more than two years after the test, they had not been able to provided him with any detail.

19. I noted to the applicant that if I took the results of the Sri Lankan test to be those that were provided in the online verification, then having regard to those scores and the scores of the other three test results he had provided, he did not appear to satisfy the requirements set out above for competent English in any of those tests. I noted that this may lead me to find that he could not satisfy the requirement for competent English, and not holding a specified passport, he may not satisfy cl. 186.222. I further noted that this may mean I would have to affirm his refusal and those of his wife and his children as they would not be members of the family unit of a person who held a 186 visa. The applicants indicated they understood.

20. The applicant said he was not required to do the IELTS test again, he did not have enough preparation but he did concede that he had not satisfied the requirement for competent English.

21. The second named applicant asked me to explain why their applications had been remitted to the Department previously and had now been refused a second time. I explained that the first named applicant must meet all the criteria to be granted the visa, and that he may not satisfy the English language proficiency requirement. She asked if there was any other way to satisfy the criteria and I explained that there was not a waiver provision for this criterion. They indicated the understood.

    Findings

22. I find that the applicant holds a Sri Lankan passport.

23. Having regard to the copy of my 2019 decision provided by the applicant, to the verification conducted on the IELTS online verification website referred to above, and to the definition of a ‘bogus document’, as defined in s.5(1), I find that the version of the IELTS test report form number 14LK003819RAND001G, with scores Listening 6.0; Reading 6.0; Writing 6.0 and Speaking 6.5, Overall band Score 6.0 which the applicant gave or caused to be given to the Department in relation to the visa application is a bogus document.

24. I place no weight on this document for the purposes of assessing the applicant’s English Language proficiency.

25. Having regard to the test results on the online verification for the 2014 Sri Lanka IELTS test result, the IELTS and PTE academic scores achieved by the applicant after that test, I find that the applicant has not achieved the required scores in any of these tests to meet the requirement for competent English as set out in 1.15C and the relevant instrument.

26. Having regard to legislative instrument IMMI 17/058 and the details of the applicant and his application, the applicant is not in a class of persons specified in that instrument.

27. On the basis of the evidence before me and my findings above, I find that the applicant does not hold a specified passport, does not have competent English as defined nor is he in a class of persons specified by the Minister in an instrument in writing for this paragraph having regard to the relevant instrument above.

28. Therefore, cl 186.222 is not met.

29. The applicant has only sought to satisfy the criteria for a Subclass 186 visa in the Temporary Residence Transition stream. No claims have been made in respect of the other visa streams. As the requirements that must be met by a person seeking the visa in the Temporary Residence Transition stream have not been met, the decision under review must be affirmed.

30. Having regard to the applications made by the second, third and fourth named applicants, there is no suggestion that any of them can satisfy the primary criteria for the grant of the visa, and I so find. As none of the applicants can satisfy the primary criteria, the secondary applicants cannot satisfy the requirements to be a member of the family unit of a person who holds a subclass 186 visa and the refusal of their applications must also be affirmed.

    DECISION

31. The Tribunal affirms the decision not to grant the applicants Employer Nomination (Permanent) (Class EN) visas.

    Sean Baker
    Member