Rizvi (Migration)

[2017] AATA 75

Rizvi (Migration) [2017] AATA 75 (6 January 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

REVIEW APPLICANT:  Mr Syed Muhammad Raza Rizvi

VISA APPLICANTS:  Mr Syed Jaffar Abbas Rizvi
Mrs Fatima Mumtaz
Mr Syed Mohammed Sajjad Raza Rizvi
Mr Syed Muhammad Ghufran Abbas Rizvi
Miss Dania Zahra

CASE NUMBER:  1603276

DIBP REFERENCE(S):  clf2008/67765

MEMBER:Miriam Holmes

DATE:6 January 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled — Designated Area-sponsored (Provisional) (Class UZ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) visa:

·cl.496.226 of Schedule 2 to the Regulations.

Statement made on 06 January 2017 at 1:08pm

CATCHWORDS
Migration – Skilled — Designated Area-sponsored (Provisional) (Class UZ) visa – Subclass 496 – English language requirement – English, sponsorship, training fee requirements met

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 1, 2, 6; Regulations 1.15B(3)(4); cl 496.226; item 1226(4); item 6311; IMMI 09/124

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the visa applicants Skilled — Designated Area-sponsored (Provisional) (Class UZ) visas under s.65 of the Migration Act 1958 (the Act).

2. The visa applicants applied to the Department of Immigration and Border Protection for Skilled — Designated Area-sponsored (Provisional) (Class UZ) visas on 31 August 2007. The delegate decided to refuse to grant the visas on 6 January 2016.

3. The delegate refused the visa applications on the basis that the first named visa applicant did not satisfy cl.496.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate did not meet the English language requirement.

4. The review applicant applied to the Tribunal on 11 March 2016 for review of the delegate’s decisions. 

   RELEVANT LAW

5. The Skilled - Designated Area-sponsored (Provisional) (Class UZ) contains only one subclass: 496 (Skilled — Designated Area-sponsored (Provisional)) found in item 1226(4) of Schedule 1 to the Migration Regulations 1994 (‘the Regulations’).

6. The criteria for a Subclass 496 (Skilled - Designated Area-sponsored (Provisional)) visa are set out in Part 496 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is applying for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

7. A primary criterion to be met at the time of decision is cl.496.226, which states that:

   Either the applicant has vocational English, or:

   (a) he or she has proficiency in English of at least the standard required for the award of 10 points for the language skill factor of the general points test specified in item 6311 of Schedule 6; and

   (b)  his or her sponsor lives in a State or Territory specified by an instrument in writing for this paragraph as a State or Territory in which arrangements are established for suitable English-language training for applicants to whom this paragraph applies; and

   (c)  the Minister is satisfied that the applicant has paid any fee or charge for that training. 

8. Regulations 1.15B(3) and (4) provide that, if a person applies, on or after 1 July 1999 but before 1 July 2012, for a visa (other than a General Skilled Migration visa), a criterion for the grant of which is that the person has vocational English, the person has vocational English if either;

   ·the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 components of reading, writing, speaking and listening in a test conducted not more than 12 months before the date of application or during the processing of the application: r.1.15B(3); or

   ·the person does not have an IELTS test score in a test conducted not more than 12 months before the date of application or during the processing of the application, and the Minister determines that it is not reasonably practicable or not necessary for the person to be tested using the IELTS test and is satisfied that the person is proficient in English to a standard that is not less than the standard required under r.1.15B(3) (ie. a standard equivalent to 5 in each of the 4 areas): r.1.15B(4).

9. For the purposes of cl.496.226(a), item 6311 of Schedule 6 which provides for the award of 10 points for the language skill factor of the general points test is as follows:

The applicant provides evidence of having achieved an IELTS average band score of at least 4.5 based on the 4 test components of speaking, reading, writing and listening in a test conducted:

(a)      not more than 12 months before lodging the relevant application to migrate; or

(b)      at the time of the processing of the relevant application to migrate

CONSIDERATION

1. On 20 February 2015 the Department requested that Mr Rizvi provide evidence of English language ability within 28 days. Mr Rizvi (the aplicant) requested an extension of time to submit the requested evidence  and the extension of time was granted. On 13 May 2015 the Department made a further request for evidence of English language ability within 28 days. On 28 May 2015 the applicant provided a booking receipt for an IELTS test on 30 May 2015. On 6 June 2015 the applicant notified the Department that he did not undertake the test due to the death of his mother. On 30 July 2015 the applicant provided another IELTS booking receipt for a test on 12 September 2015. On 16 September 2015 the applicant advised that he would provide the IELTS test result upon receipt. On 23 October 2015 the Department again requested evidence of the applicant’s English language ability. On 20 November 2015 the applicant advised he did not achieve the required score and resat the IELTS test. On 24  November the Department requested the results for the 7 November IELTS test. As at 6 January 2016 the Department had not received any IELTS results. Consequently the delegate refused the visa application.

2. On 29 November 2016 the applicant provided to the Tribunal a copy of the IELTS test report for the IELTS test undertaken on 29 October 2016. The IELTS test result for Mr Rizvi, dated 10 November 2016, recorded scores of 3.5 (listening), 4.5 (reading), 5.0 (writing), and 5.5 (speaking) and an overall band score of 4.5.

3. The Tribunal accepts from the applicant's IELTS test undertaken on 29 October 2016 that he has proficiency in English of at least the standard required for the award of 10 points for the language skill factor of the general points test specified in item 6311 of Schedule 6, given that the overall band score of his test was 4.5. The applicant therefore meets the requirements of cl.496.226(a).

4. The review applicant lives in Victoria. The Tribunal accepts that the applicant's sponsor (the review applicant) lives in a State or Territory specified by an instrument in writing for this paragraph as a State or Territory in which arrangements are established for suitable English-language training for applicants to whom this paragraph applies: IMMI 09/124. The applicant therefore meets the requirements of cl.496.226(b).

5. The Tribunal also accepts from a recent letter from AMES, dated 4 December 2016, that the applicable training fee has now been paid and, accordingly, the applicant satisfies the requirements of cl.496.226(c).

6. It follows from the above that the applicant satisfies the requirements of cl.496.226 in its entirety.

   DECISION

7. The Tribunal remits the applications for Skilled — Designated Area-sponsored (Provisional) (Class UZ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 496 (Skilled — Designated Area-sponsored (Provisional)) visa:

   ·cl.496.226 of Schedule 2 to the Regulations.

   Miriam Holmes
   Senior Member