Zreika (Migration)

[2017] AATA 965

Zreika (Migration) [2017] AATA 965 (9 June 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Wassim Zreika

CASE NUMBER:  1600046

DIBP REFERENCE(S):  BCC2010/258532

MEMBER:Denise Connolly

DATE:9 June 2017

PLACE OF DECISION:  Sydney

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

Statement made on 09 June 2017 at 1:56pm

CATCHWORDS

Migration – Skilled (Residence) (Class VB) visa – Subclass 886 (Skilled - Sponsored) – English language proficiency – Anxiety issues – No discretion to waive requirement – No evidence provided

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, cl.886.213, r 1.15C(a)

CASES

Berenguel v MIAC (2010) 264 ALR 417

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 on 23 December 2015 to refuse to grant the applicant a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 28 June 2010. At the time the visa application was lodged, Class VB contained three subclasses, 885 (Skilled – Independent), 886 (Skilled - Sponsored) and 887 (Skilled – Regional). Having regard to the visa application, the relevant subclass in this case is Subclass 886, the criteria for which are set out in Part 886 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused to grant the visa because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 20 April 2017 to give evidence and present arguments. He informed the Tribunal that he did not require the assistance of an interpreter.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. The issue in the present case is whether the applicant has competent English as required by cl.886.213. Regulation 1.15C(a) provides that a person has ‘competent English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Such a test may be conducted after the application was lodged, but not more than 2 years earlier: Berenguel v MIAC (2010) 264 ALR 417. Alternatively, a person has competent English if he or she holds a passport of a type specified by the Minister (r.1.15C(b)).

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that, in his visa application, the applicant claimed to have competent English and sought to rely on an IELTS test undertaken on 15 April 2009. When documentary evidence was sought by the Department the applicant’s representative responded by advising that the applicant had booked to sit an IELTS test on 26 September 2015.

9. The Department’s file records that on 30 October 2015, after the delegate sought the English language proficiency evidence, the applicant’s representative advised the Department that the applicant had failed to achieve the required results in that test. He provided evidence that the applicant had booked to sit another IELTS test on 23 January 2016 and requested further time.  The delegate declined to provide the applicant with more time and refused the visa on 23 December 2015 on the basis that the applicant had not provided evidence that he has competent English.

10. On 3 March 2017, prior to the hearing, the applicant’s representative provided evidence that the applicant had booked to sit a Pearson Test of English Academic on 19 April 2017.

11. The applicant has provided to the Tribunal his curriculum vitae and a spread sheet recording all of his IELTS test results, undertaken in the period 17 September 2005 to 21 November 2015. Those results show that he has not been able to achieve scores of at least 6 for each of the 4 test components in any one test. He also provided evidence regarding his qualifications and his skills assessment. He provided a written submission in which he described his qualifications, employment experience and his ability to communicate with employers and colleagues. He indicated his inability to achieve the required English language test scores has not been due to lack of persistence. He has sat the IELTS test 36 times over a 10 year period. He gets extremely nervous and anxious during the tests and this affects his performance. He has sought counselling to assist with his test anxiety. He has registered to sit another IELTS test on 29 April 2017 and intends to sit the PTE test on 19 April 2017. He understands he must demonstrate that he has competent English however he asked that the Tribunal consider his case under exceptional circumstances. He calculated his mean scores and asked that the Tribunal take those into account.

12. At the hearing the Tribunal explained that it has considered his submissions but that it does not have any discretion to waive the requirement that the applicant meets the definition of competent English as defined in r.1.15C. It explained those requirements. He confirmed he holds a passport of Lebanon.

13. The applicant confirmed that he does not have evidence of competent English however he believes he meets the criteria if his mean statistics are accepted. He confirmed that he has not achieved the minimum required scores in any one test. The applicant submitted that he has undertaken an IELTS preparation course and he has had private tuition. The Tribunal explained that it accepted he had gone to some length to prepare for his English test. It explained however that it is required to apply the definition set out in the regulations. He submitted that IELTS does not adequately assess his English language proficiency. The Tribunal explained that it does not undertake its own assessment of his English. It explained it needed to see documentary evidence based on tests he has undertaken. He indicated he understands but he wants to explain what has happened to him and he is concerned that his case is different to a black and white case. The applicant confirmed that he has booked to sit another IELTS test on 29 April 2017. He showed the Tribunal the receipt for that test which was stored on his mobile phone.

14. The Tribunal informed the applicant that it would wait until 12 May 2017 for the applicant to provide further evidence regarding his English language proficiency. The Tribunal explained that, as he has sat 36 English tests and, in its view has had a fair opportunity to obtain evidence of competent English if he has it, it will only wait for the results of the test on 29 April 2017. The Tribunal indicated it was of the view that nearly 7 years is sufficient time for the applicant to obtain this evidence however, out of fairness, given he had already booked to sit a test on 29 April 2017, it would wait for the results of that test.

15. The applicant has not provided to the Tribunal any other evidence or made any contact since the hearing. He has not asked the Tribunal to provide him with further time. In these circumstances the Tribunal will now proceed to make its decision.

16. The Tribunal has considered the applicant’s request that it take into account his qualifications, employment experience, numerous attempts at English language tests and the anxiety he suffers when he sits those tests. However, as it explained to him at the hearing, the Tribunal does not have any discretion to waive the requirement that the applicant demonstrate that he meets the definition of competent English as it is set out in r.1.15C.

17. In the present case, the applicant holds a passport of Lebanon. There is no evidence to indicate he holds a passport of a type specified and as such does not satisfy r.1.15C(b).

18. Having regard to all of the material before it the applicant has not provided to the Tribunal or the Department evidence that he has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, either (i) an IELTS test score of at least 6 for each of the 4 test components; or (ii) a score in a test specified by the Minister. Accordingly the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a).

19. The applicant therefore has not provided evidence that he has competent English as defined in r.1.15C.

20. On the basis of the above, the applicant does not meet the requirements of cl.886.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 886 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

21. The Tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

    Denise Connolly
    Member