Tudtud (Migration)

[2017] AATA 1205

Tudtud (Migration) [2017] AATA 1205 (19 July 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Erica Tudtud

CASE NUMBER:  1703862

DIBP REFERENCE(S):  BCC2016/4331108

MEMBER:Alison Mercer

DATE:19 July 2017

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.212 of Schedule 2 to the Regulations.

Statement made on 19 July 2017 at 2:58pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work Stream – English language proficiency – Hearing not required – IELTS test provided

LEGISLATION

Migration Act 1958, ss 65, 360(2)(a)

Migration Regulations 1994, Schedule 2, cl 485.212

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 applicant applied for the visa on 22 December 2016. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however, that subclass is not relevant to the present matter.) The criteria for the grant of a subclass 485 visa are set out in Part 485 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 the visa on 28 February 2017 because the applicant did not have the required English language proficiency. The delegate noted that the applicant had to either hold a passport from a specified country or provide evidence that she had undertaken a specified English test within a specified period and achieved the specified scores in order to meet the English language proficiency requirements in cl.485.212. The delegate found that the applicant was a national of the Philippines, which was not a specified country. She further found that although the applicant had provided a Pearson Test of English Academic (PTE Academic) test report form indicating that she had undertaken an English test on 25 November 2016, and this was a specified English test undertaken in the specified period of 3 years before the visa application was made, the applicant did not obtain the specified score as her score in 1 of the 4 test components was less than 36. Accordingly, the delegate found that the applicant did not meet cl.485.212 and could not be granted a subclass 485 visa.

4. The Tribunal received a review application from the applicant on 5 March 2017.  It was accompanied by a copy of the delegate’s decision and an undated letter from Dr Russell Kennedy, Senior Lecturer and Course Director – Visual Communication Design of the School of Communication and Creative Arts, Faculty of Arts and Education at Deakin University in support of the applicant.  Dr Kennedy states that he has known the applicant for over 2 years when she was a Masters student at Deakin University from 2015 to 2016, and that she excelled there and demonstrated a very high level of ability in design and written and spoken English.  He states that he was shocked that her visa application was rejected given his knowledge of her high level English abilities and he strongly supported her case being favourably considered by the Tribunal.

5. The applicant also provided a copy of an International English Language Testing System (IELTS) test report form indicating that she had undertaken an Academic English test on 21 June 2014 in which she achieved scores of 6.5 for listening, 6.0 for reading, 6.0 for writing and 8.0 for speaking, with an overall band score of 6.5.  She also provided her PTE Academic English test report form indicating that she sat a test on 25 November 2016 in which she obtained scores of 61 for listening, 46 for reading, 25 for speaking and 71 for writing, with an overall score of 50.

6. In a written statement provided to the Tribunal on 10 March 2017, the applicant indicated that she obtained the overall pass mark of 50 for the PTE Academic Test and scored significantly in excess of 36 for 3 out of the 4 components of that test. She stated that she believed that there must have been a mistake in relation to the speaking/oral fluency component, in which she scored 25, as she states that she grew up speaking English with an American accent and was accepted into, and successfully completed, a Master of Creative Arts at Deakin University. The applicant speculated that her score of 25 for the speaking/oral fluency component of the PTE Academic English test could have been due to the computer’s microphone not recording her voice properly.  She further stated that she had in fact undertaken an IELTS test on 3 July 2014, less than 3 years before making her subclass 485 visa application, in which she obtained 8 for the speaking component, which demonstrated that she had good English skills.

7. The Tribunal sought and received independent verification of the applicant’s IELTS test result form scores for the test she undertook on 21 June 2014 (the results of which were issued on 3 July 2014) by utilising the online IELTS verification service on 19 July 2017.   

8. In reaching its decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to section 360(2)(a) of the Act.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:

   ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).

2. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl.485.212(b) is not met. As such, the applicant must meet cl.485.212(a).

3. IMMI 15/062 provides that both an IELTS test and a PTE Academic English test are specified as acceptable for the purposes of cl.485.212, provided that the test in question was undertaken within the 3 years before the day on which the application was made (items 1,2 and 4 of IMMI 15/062).

4. Item 3 of IMMI 15/062 sets out the specified scores for each test, being:

• PTE Academic English test – minimum overall score of 50, with not less than 36 for each of the 4 test components of listening, reading, speaking and writing; and

• IELTS English test – minimum overall score of 6, with not less than 5 for each of the 4 test components of listening, reading, speaking and writing.

1. The Tribunal concurs with the delegate that although the applicant provided a PTE Academic English test report undertaken in the specified period, she failed to achieve 36 in the speaking component despite achieving the required minimum overall score of 50 and obtaining more than 36 in the remaining 3 components of the test. Regardless of the reasons put forward for the applicant’s failure to obtain 36 for the speaking component, her results in this test do not meet the requirements of item 3 of IMMI 15/062 and this test does not satisfy cl.485.212(b).

2. However, the applicant has now provided another specified test, the IELTS test she undertook on 21 June 2014, within the specified 3 year period before she made her subclass 485 visa application on 22 December 2016.  The Tribunal is satisfied that she obtained scores of 6 or more in each of the 4 components of that test, and that her overall band score was 6.5.  The Tribunal has independently verified that these results are genuine and valid.

3. Accordingly, the Tribunal finds that the applicant’s IELTS test of 21 June 2014 meets the requirements of IMMI 15/062, and she thus meets cl.485.212(b) on the basis of this test.

4. On the basis of the above, the Tribunal finds that the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

DECISION

1. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   · cl.485.212 of Schedule 2 to the Regulations.

Alison Mercer
Member