[Home] [Databases] [WorldLII] [Search] [Feedback] Migration Review Tribunal of Australia

You are here: 

1009614 [2011] MRTA  1676  (19 July 2011)

Last Updated: 27 July 2011

1009614  [2011] MRTA 1676  (19 July 2011)

DECISION RECORD

APPLICANT: Mr Woo Jong Kim

MRT CASE NUMBER: 1009614

DIAC REFERENCE(S): BCC2010/213580

TRIBUNAL MEMBER: Karen Synon

DATE: 19 July 2011

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 (Skilled - Graduate) visa:

• cl.485.215 of Schedule 2 to the Regulations.
  

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 and Citizenship 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 to the Department of Immigration and Citizenship for the visa on 26 May 2010. The delegate decided to refuse to grant the visa on 13 October 2010 and notified the applicant of the decision and his review rights.
3. The delegate refused the visa application on the basis that the applicant did not satisfy cl.485.215 in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because he did not have competent English.
4. The applicant applied to the Tribunal on 29 October 2010 for review of the delegate’s decision.
5. The Tribunal finds that the delegate’s decision is an MRT-reviewable decision under s.338(2) of the Act. The Tribunal finds that the applicant has made a valid application for review under s.347 of the Act.

RELEVANT LAW

6. 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).
7. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 485 visa.

Criteria in issue

8. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations. Relevantly to this matter, a primary criterion to be met at the time of application is cl.485.215.
9. Clause 485.215 requires that the applicant has competent English.

Defined terms

10. ‘Competent English’ is defined in r.1.15C of the Regulations. A person has ‘competent English’ under r.1.15C if the person satisfies the Minister that the person:

(a) has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(i) an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

(ii) a score:

(A) specified by the Minister in an instrument in writing for this sub-subparagraph; and

(B) in a language test specified by the Minister in the instrument; or

(b) holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

11. The High Court in Berenguel v MIAC [2010] HCA 8 held that the English language proficiency requirement in cl.885.213 can be satisfied by a test undertaken after the application has been made. Clause 485.215 is expressed in similar terms and the Tribunal considers the Court’s reasoning to be equally applicable to it.
12. For the purposes of r.1.15C(a)(ii), the Minister has specified a score of at least B in all components of the Occupational English Language Test (OELT) and for r.1.15C(b), passports issued by the United Kingdom, the United States of America, Canada and New Zealand or Ireland: Legislative Instrument IMMI 09/73.
13. The issue in the present case is whether the applicant has provided evidence of the relevant level of English ability for the grant of this visa.

CLAIMS AND EVIDENCE

14. The Tribunal has before it the Department’s file relating to the applicant. The Tribunal has also had regard to the material referred to in the delegate's decision, and other material available to it from a range of sources.
15. The applicant was represented in relation to the review by his registered migration agent.
16. The applicant submitted a number of documents with his application including, relevantly, a certified copy of his Republic of Korea passport.
17. On 13 October 2010 the delegate refused the application because the applicant had not demonstrated he had competent English.
18. On 12 July 2011 the applicant submitted the results of an IELTS test he sat on 30 October 2010. This test report form provides an Overall Band Score of 7.5 with the following test results:

Listening 7.0

Reading 7.5

Writing 6.0

Speaking 8.5

19. The Tribunal has verified these results (at folio 65) and accordingly is satisfied that the applicant achieved a test score of at least 6 in each of the four test components in a test conducted not more than 2 years before the day on which the application was lodged.
20. The Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it pursuant to section 360(2)(a) of the Act.

FINDINGS AND REASONS

21. The issue in the present case is whether the applicant meets cl.485.215.
22. On the evidence before the Tribunal, the applicant nominated a skilled occupation of ‘Hotel or Motel Manager’ and at the relevant time, held a passport of the Republic of Korea.
23. For the purposes of determining whether the applicant has competent English, the Tribunal finds that the applicant did not hold a passport specified by the Minister in an instrument in writing for the purposes of r.1.15C(b).
24. The Tribunal finds that the applicant has achieved a score of at least 6 for each of the 4 test components of speaking, reading, writing and listening in an IELTS test conducted not more than 2 years before the day on which the visa application was lodged. The Tribunal therefore finds that the applicant has competent English as defined in r.1.15C.
25. The Tribunal finds that the applicant satisfies cl.485.215.
26. For the reasons given above, the Tribunal finds that, the applicant satisfies cl.485.215.

CONCLUSIONS

27. Given the findings made above, the Tribunal remits the matter with a direction that the applicant meets cl.485.215.

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 (Skilled - Graduate) visa:

• cl.485.215 of Schedule 2 to the Regulations.
  

Karen Synon
Member