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

You are here: 

1111918 [2012] MRTA  1491  (28 May 2012)

Last Updated: 8 June 2012

1111918  [2012] MRTA 1491  (28 May 2012)

DECISION RECORD

APPLICANT: Mr Sukhjinder Singh Gill

MRT CASE NUMBER: 1111918

DIAC REFERENCE(S): BCC2010/240340

TRIBUNAL MEMBER: Antonio Dronjic

DATE: 28 May 2012

PLACE OF DECISION: Melbourne

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

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 15 June 2010. The delegate decided to refuse to grant the visa on 2 November 2011 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 the applicant has failed to provide evidence of having a competent level of English language.
4. The applicant applied to the Tribunal on 9 November 2011 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 each of the four components of an Occupational English Language test and for r.1.15C(b), and passports issued by United Kingdom, the United States of America, Canada, New Zealand or Ireland: Legislative Instrument IMMI 09/073.
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 also has 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 is a 27 Years old national of India who arrived to Australia on 22 December 2007 as a holder of a student visa subclass 572. Between 11 February 2008 and 16 December 2009, the applicant has completed a Diploma of Community Welfare Work at Stott’s Colleges at Melbourne.
16. The applicant applied for a Skilled (Provisional) Class VC visa on 15 June 2010. He provided with the application a number of personal documents, evidence of his studies in Australia, evidence of the skills assessment and other documents. The applicant had nominated the occupation of a Welfare Worker in his application. On the application form, in relation to the question regarding the applicant’s English language ability, the applicant stated that she had Competent English. The visa applicant also indicated that he had booked to undertake an IELTS test on 14 August 2010.
17. On 20 September 2011 and e-mail request was sent by the Department to the applicant requesting further documents, including evidence of the applicant’s English language ability. On 17 October 2011 the applicant wrote to the Department and inform it that “he did not achieved sufficient IELTS results”.
18. 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 the applicant has failed to provide evidence of having a competent level of English language as required by cl.1.15C to the Regulations.

Review Application

19. The applicant applied to the Tribunal on 9 November 2011 for review of the delegate’s decision. Copy of the primary decision record was included with the application.
20. On 10 November 2011 the Tribunal acknowledged the receipt of the review application and invited the applicant to provide further documentary evidence for the Tribunal’s consideration.
21. On 13 April 2012 the Tribunal wrote to the applicant advising him that it considered material before it and was unable to make a favourable decision on this material alone and invited the applicant to attend the hearing on 28 May 2012 to give evidence and present arguments. The letter also included a request for the applicant to provide evidence that he has competent English.
22. The applicant was advised that if he did not attend the hearing and a postponement was not granted, the Tribunal may make a decision on his case without further notice. On 28 May 2012 the applicant’s authorised representative informed the Tribunal that the applicant will not attend the scheduled hearing without providing further explanation. The applicant did not appear before the Tribunal on the day and at the time and place at which the hearing was scheduled.
23. The Tribunal notes that the invitation to appear before the Tribunal was sent to the applicant’s authorised representative address for service provided in connection with the application for review. As the visa applicant has failed to appear before the Tribunal, the Tribunal has proceeded under section 362B(1) of the Act to make a decision on the review without taking any further action to allow or enable the visa applicant to appear before it.
24. The Tribunal notes that under subsection 362B(1) it has a discretion, which is confirmed by subsection 362B(2), to re-schedule the review applicant’s appearance before it, or to delay its decision on the review in order to enable the review applicant’s appearance before it to be re-scheduled. The Tribunal has considered whether it would be appropriate for it to exercise this discretion in the review applicant’s favour but, given the findings set out below, the Tribunal determined that in the circumstances of this particular case there would be no value in doing so.

FINDINGS AND REASONS

25. The issue in the present case is whether the applicant meets cl.485.215.
26. Based on the evidence before the Tribunal, the applicant nominated a skilled occupation of a Welfare Worker and at the relevant time, held a passport of India. 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).
27. The applicant claimed in his visa application form that he had competent English; however, there is no evidence before the Tribunal to substantiate this claim.
28. As at the date of this decision there is no evidence before the Tribunal that the applicant has achieved the requisite score in an IELTS test. There is no evidence before the Tribunal that the applicant has achieved, in a test conducted not more than 2 years before the day on which the application was lodged, an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening. The Tribunal is not satisfied that he meets r. 1.15C(a)(i).
29. There is no evidence before the Tribunal that the applicant had achieved a score of at least ‘B’ in each of the four components of an Occupational English Language test conducted not more than 2 years before the day on which the application was made, which is the score and the language test specified by the Minister in writing. The Tribunal is not satisfied that the applicant meets r. 1.15C(a)(ii).
30. The Tribunal therefore finds that the applicant does not have competent English as defined in r.1.15C.
31. The Tribunal has taken into account the evidence before it that the visa applicant completed a Diploma of Community Welfare Work in December 2009. However, regulation 1.03 clearly provides that “competent English has the meaning given by regulation 1.15C” and this provision does not provide any basis for the Tribunal to form its own view regarding the proficiency of competency of an applicant’s English language skills. Nor does it allow the Tribunal to waive the requirements of regulation 1.15C on the basis of compelling or compassionate circumstances.
32. For the reasons given above, the Tribunal finds that, the applicant does not satisfy cl.485.215.
33. The Tribunal has also considered whether the applicant satisfies the criteria for the grant of a Subclass 487 visa. As there is no claim or evidence that the applicant was nominated by a State or Territory government agency or sponsored by a relevant Australian relative, as required by cl.487.213, the applicant cannot meet the criteria for a Subclass 487 visa.

CONCLUSIONS

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

DECISION

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

Antonio Dronjic
Member