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0803640 [2009] MRTA  1692  (2 September 2009)

Last Updated: 8 September 2009

0803640  [2009] MRTA 1692  (2 September 2009)

DECISION RECORD

REVIEW APPLICANT: Mr Utpal Baruah

VISA APPLICANTS: Mr Jitu Baruah
Mrs Gitimoni Baruah
Miss Nikhita Baruah

MRT CASE NUMBER: 0803640

DIAC REFERENCE(S): CLF2007/1921

TRIBUNAL MEMBER: Richard Derewlany

DATE: 2 September 2009

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the applications for Skilled — Australian-sponsored (Migrant) (Class BQ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 138 (Skilled — Australian-sponsored) visa:

• cl.138.226 of Schedule 2 to the Regulations.
  

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 Citizenship to refuse to grant the visa applicants Skilled — Australian-sponsored (Migrant) (Class BQ) visas under s.65 of the Migration Act 1958 (the Act).
2. The visa applicants applied to the Department of Immigration and Citizenship for Skilled — Australian-sponsored (Migrant) (Class BQ) visas on 27 November 2006. The delegate decided to refuse to grant the visas on 10 April 2008 and notified the visa applicants of the decision and their review rights by letter dated 10 April 2008.
3. The delegate refused the visa applications on the basis that the first named visa applicant did not satisfy cl.138.226 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the first named visa applicant did not satisfy cl.138.226 because he does not have vocational English as defined by r.1.15B of the Regulations.
4. The review applicant applied to the Tribunal on 12 June 2008 for review of the delegate’s decisions.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(5) of the Act. The Tribunal finds that the review applicants have made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. At the time the visa application was lodged, the Skilled – Australian-sponsored (Migrant) (Class BQ) visa contained the following subclasses: Subclass 138 (Skilled – Australian-sponsored) and Subclass 139 (Skilled – Designated Area-sponsored): item 1128B(4) of Schedule 1 to the Regulations. An application by a person seeking to satisfy the criteria for a Subclass 139 visa must be made before 1 July 2006: item 1128B(3)(e). As the visa application in this case was made after 1 July 2006, the only relevant subclass is Subclass 138.
7. The criteria for a Subclass 138 visa are set out in Part 138 of Schedule 2 to the Regulations. The primary criteria must be satisfied by at least one member of the family unit who is an applicant for the visa. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.
8. Relevantly to this matter, a primary criterion to be met at the time of decision is cl.138.226 which requires that the first named visa applicant has ‘vocational English’.
9. Vocational English is defined in r.1.15B of the Regulations. For visa applications lodged after 1 July 1999, r.1.15B(3) and (4) relevantly provide:

(3) If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:

(a) not more than 12 months before the day on which the application was lodged; or

(b) during the processing of the application.

(4) If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if:

(a) the person does not have an IELTS test score in a test conducted:

(i) not more than 12 months before the day on which the application was lodged; or

(ii) during the processing of the application; and

(b) the Minister:

(i) determines that it is not reasonably practicable, or not necessary, for the person to be tested using the IELTS test; and

(ii) is satisfied that the person is proficient in English to a standard that is not less than the standard required under subregulation (3).

10. Clause 138.228 is an alternative to cl.138.226 but is not relevant for visa applications made on or after 1 October 2006: r.2.27(1)(c).

CLAIMS AND EVIDENCE

11. The Tribunal has before it the Department’s file relating to the visa applicants
12. The review applicant submitted a letter to the Tribunal dated 1 July 2008 in which he explained why he was seeking a review of the Department’s decision, in particular that the first named visa applicant had responded to the Department’s request regarding IELTS results by asking whether a waiver of IELTS was possible on the basis of his education, work and residence in the USA and Canada, and TOEFL scores from 2004. He never received a reply from the Department.
13. The review applicant appeared before the Tribunal on 11 August 2009 to give evidence and present arguments.
14. The review applicant reiterated that he had sought review of the decision because his brother had responded to the Department’s request in August 2007 for evidence of IELTS test results. His brother asked the Department whether there were provisions to waive the test requirement on the basis that he had received his education in English medium educational institutions, had lived and worked for a significant period in the USA, and had achieved a TOEFL score of 260 from 300 in 2004. He received no reply from the Department, did not receive any reminder in February 2008 as claimed by the delegate, and received only the refusal letter in April 2008. The review applicant explained that when he applied for his visa he also submitted information about his education and employment background and was advised he did not have to undergo an IELTS test. His brother was prepared to take an IELTS test if necessary, but felt it was reasonable for the Department to consider his circumstances and advise him whether such a test was still necessary.
15. The review applicant confirmed that the first named visa applicant had not ever undertaken an IELTS test. The Tribunal explained the provisions enabling it to decide whether it was not necessary or reasonably practicable for the first named visa applicant to undergo IELTS testing, and if so, to decide whether he had English language proficiency to at least the equivalent level of the required IELTS scores in the definition of vocational English.
16. The Tribunal indicated it had sufficient evidence of the first named visa applicant’s education and would take this into account. The review applicant provided a copy of the first named visa applicant’s TOEFL scores from 2004, and the Tribunal indicated that comparison tables for TOEFL and IELTS indicated this approximated an IELTS band score of at least 7.
17. The Tribunal indicated that the first named visa applicant’s residence and work in the USA and Canada appeared also to be a strong factor in his favour. The Tribunal requested further evidence of the total period of the first named visa applicant’s employment with Amdocs Inc. in the USA, and evidence of his employment in Canada The review applicant undertook to obtain and submit this evidence as soon as possible.
18. On 1 September 2009 the Tribunal received further evidence as follows: a letter from Amdocs Inc dated 22 September 2006 confirming the first named visa applicant had been a full time employee of the company since September 2001; a letter from ITSP Inc dated 4 April 2007 confirming the fist named visa applicant was an Independent Consultant working with the company since January 2007, and a letter from the same company dated 13 February 2009 confirming he worked with the company in a full time contracting position from January 2007 to 31 March 2008; a letter from Rogers group dated 13 August 2009 confirming the first named visa applicant has worked at the company since April 2008 and holds the position of Senior programmer Analyst.

FINDINGS AND REASONS

19. As noted above, the issue in the present case is whether the first named visa applicant meets cl.138.226
20. The Tribunal is satisfied that the first named visa applicant has not undertaken an IELTS test at any stage.
21. The Tribunal has evidence that the first named visa applicant completed a Bachelor degree in India at Jorhat Engineering College, and that the language of instruction was English. The applicant also undertook some months of study in an MBA course at the University of Louisiana, Monroe USA in 2004. The Tribunal also has evidence that the first named visa applicant achieved a TOEFL score (Computer based test) of 260 out of 300 in April 2004. A number of websites provide comparison tables for IELTS and TOEFL results, for example: http://www.shef.ac.uk/eltc/useful/toefl_ielts.html (University of Sheffield) and www.eurogates.nl/en-TOEFL-IELTS-score-conversion/ (Netherlands Education Portal). These indicate that a TOEFL score of 250 (in the computer test) compares with an IELTS band score of 7 and a score of 260 compares with an IELTS band score of 7.5. In addition, a paper given at the Australian International education conference in 2008 (www.aiec.idp.com/pdf/Tyson_Wed_1630_M2.pdf ) outlines a research study that compared TOEFL internet test scores with IELTS scores. The Tribunal accepts that the comparison tables constitute a guide rather than a precise measure of equivalency, but considers that as they are used as such by a number of educational institutions, they can be relied on to obtain a broad indication of the first named visa applicant’s equivalent IELTS level at the time he undertook his TOEFL test. The Tribunal is satisfied on the basis of the comparison tables that the first named visa applicant had demonstrated English language proficiency in April 2004 that was the equivalent of at least an IELTS band score of 7.
22. The evidence establishes that the first named visa applicant has resided in the USA from 2001 to the end of 2006, and in Canada from the beginning of 2007, that he was employed full time by Amdocs Inc. in the USA from 2001 to September 2006, and has been in full time employment in Canada from January 2007 to the present The Tribunal considers this is a significant period of residence and employment in English speaking countries, particularly as it constitutes a period of approximately 5 years after the first named visa applicant achieved the TOEFL scores discussed above.
23. Given the first named visa applicant’s significant period of residence and employment in the USA and Canada, his TOEFL results achieved in 2004, and his education at English medium institutions, the Tribunal finds that it is not necessary for the first named visa applicant to be tested using the IELTS test. Taking the same evidence into account, the Tribunal is satisfied that he is proficient in English to a standard that is not less than the standard required under subregulation 1.15B(3), that is, a score of at least 5 for each of the 4 IELTS test components.
24. The Tribunal therefore finds the first named visa applicant meets the definition of r.1.15B(4).
25. In sum, the Tribunal finds that the first named visa applicant does not have an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted not more than 12 months before the day on which the visa application was lodged or during the processing of the application. The Tribunal has alternatively considered whether the first named visa applicant can be found to have vocational English pursuant to r.1.15B(4). For the reasons given above, the Tribunal is satisfied that it is not necessary for the first named visa applicant to be tested using the IELTS test and is satisfied that he is proficient in English to a standard not less than that required in r.1.15B(3). As the Tribunal is satisfied that the first named visa applicant has vocational English, he meets cl.138.226.

CONCLUSIONS

26. For the reasons given above, the Tribunal finds that the first named visa applicant meets cl.138.226, being a prescribed criterion for the grant of a Subclass 138 visa. The matter will now be remitted to the Department for reconsideration.

DECISION

27. The Tribunal remits the applications for Skilled — Australian-sponsored (Migrant) (Class BQ) visas for reconsideration, with the direction that the first named visa applicant meets the following criteria for a Subclass 138 (Skilled — Australian-sponsored) visa:
    • cl.138.226 of Schedule 2 to the Regulations.
      

Richard Derewlany
Member