SINGH (Migration)

[2017] AATA 708

SINGH (Migration) [2017] AATA 708 (5 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Satbir SINGH

CASE NUMBER:  1618680

DIBP REFERENCE(S):  BCC2010/205894

MEMBER:Mary-Ann Cooper

DATE:5 May 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 05 May 2017 at 9:55am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 487 – Regional Sponsored stream – English language proficiency – IELTS test – Concessional competent English language requirement not met

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, r 1.15C, r 1.15E, Schedule 2, cl 485.215, cl 487.215, cl 487.224

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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The Skilled (Provisional) (Class VC) visa permits graduates of Australian educational institutions and people who have held certain temporary skilled visas to reside in Australia temporarily in order to obtain skills and qualifications required for permanent General Skilled Migration visas. At the time the visa application was lodged, the Skilled (Provisional) (Class VC) visa class contained the following subclasses: Subclass 485 (Skilled – Graduate) and Subclass 487 (Skilled – Regional Sponsored).

3. The applicant applied for the visa on 19 May 2010. The delegate decided to refuse to grant the visa on 21 October 2016.  The applicant applied to the Tribunal on 8 November 2016 for review of the delegate’s decision.

4. The delegate refused the visa application on the basis that the applicant did not satisfy cl.487.224 in Part 487 of Schedule 2 to the Migration Regulations 1994 (the Regulations) and, alternatively, cl.485.215, because he had not provided evidence of his required English language proficiency.

5. The applicant appeared before the Tribunal by telephone on 24 March 2017 to give evidence and present arguments.

6. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The visa is being sought on the basis of the applicant’s sponsorship by an eligible relative. Accordingly, the application will be initially assessed against the criteria for a Subclass 487 visa.

2. The criteria for a Subclass 487 visa are set out in Part 487 of Schedule 2 to the Regulations. A primary criterion to be met at the time of application is cl.487.215. Clause 487.215 requires that:

   ·the applicant has concessional competent English (cl.487.215(a)); or

   ·the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl.487.215(b)).

3. Where the application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, the applicant must also satisfy cl.487.224 at the time of decision. Clause 487.224 requires that the applicant has concessional competent English.

4. The term ‘concessional competent English’ is defined in r.1.15E. An applicant for a Subclass 487 visa has concessional competent English if the person satisfies the Minister that he or she has achieved, in a test conducted not more than 2 years before the date of the application:

   ·an IELTS test average band score of at least 6 for the 4 test components of speaking, reading, writing and listening or

   ·a specified score in a language test specified by the Minister in writing.

5. At the relevant time for this application, no other language test had been specified by the Minister.

6. As recorded in the delegate’s decision, a copy of which was provided with the review application, the applicant’s visa application indicated that he had not undertaken an English test within the 2 previous years. The decision further records that on 5 January 2012 he provided an invoice which indicated that he had booked an IELTS test for 10 July 2010. The results of that test were not provided to the Department and, notwithstanding further claims of further test bookings, no results were supplied. On that basis the delegate was not satisfied that the applicant met cl.487.224. The delegate also assessed the application against cl.485.215 but, in the absence of any evidence that the applicant had competent English, found he did not meet the requirements for either visa and the application was refused.

7. At the hearing the applicant said he had undertaken several tests but had not achieved the required score. He said he had booked another test for 8 April 2017 and asked the Tribunal to wait for his results before making a decision. The Tribunal indicated to the applicant that the legislation required, in the absence of evidence of concessional competent English at the time of application, that his application had been accompanied by evidence that he had made arrangements to undergo a specified language test (cl.487.215(b)). On the information on the Departmental file, no such evidence relevantly ‘accompanied’ the application, the evidence of a booking not being provided until some years later. On that basis, the Tribunal told the applicant, even if he achieved the required scores in his IELTS test on 8 April 2017, it may still not be satisfied that he met the relevant criteria. It allowed the applicant until 29 April 2017 to provide the results of his English language test and any further submissions in support of his application.

8. As of today’s date, there has been no further communication or information supplied by the applicant or his representative.

9. The issue in the present case is whether the applicant has provided evidence that either, at the date of his application, he had concessional competent English or, if his visa application had been accompanied by evidence that he had he had made arrangements to undergo a specified language test, at the time of decision, he has concessional competent English.

10. There is no evidence before the Tribunal that the applicant has concessional competent English as defined (r.1.15E) either at the time of application or the time of decision.

11. On this basis the Tribunal is not satisfied that the applicant meets cl.487.215 or cl.487.224.

12. The delegate also considered whether, alternatively, the applicant met the equivalent provisions for the grant of a subclass 485 visa. In this context the relevant provision for consideration is cl.485.215 which requires that, at the time of application, the applicant has ‘competent English’. Competent English is defined in r.1.15C and provides that, for a General Skilled Migration visa applicant, the applicant has achieved, in a test conducted not more than 2 years before the date of application, an IELTS a score of at least 6 for each of the 4 tests components of speaking, reading, writing and listening. Alternatively, r.1.15C provides that an applicant can achieve a score in another language test as specified by the Minister in writing or hold a specified passport.

13. The relevant instrument at the time of application was IMMI 09/073. It specified a score of at least ‘B’ in each of the four components of an Occupational English Language test (OET) or a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or Ireland, to a citizen of that country.

14. Documents on the Department’s file confirm that the applicant is an Indian citizen and holds an Indian passport. There is nothing before the Tribunal evidencing results of any IELTS or OET tests undertaken by the applicant.

15. On this basis the Tribunal is not satisfied that the applicant meets cl.485.215.

CONCLUSION

1. Given the findings above, the Tribunal affirms the decision under review.

DECISION

1. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Mary-Ann Cooper
Member