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1212656 [2013] MRTA  2509  (9 October 2013)

Last Updated: 15 October 2013

1212656  [2013] MRTA 2509  (9 October 2013)

DECISION RECORD

APPLICANT: Mr Rogelio Corral Puente

MRT CASE NUMBER: 1212656

DIAC REFERENCE(S): BCC2011/491691

TRIBUNAL MEMBER: Linda Symons

DATE: 9 October 2013

PLACE OF DECISION: Sydney

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 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 25 October 2011. At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses: 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). Having regard to the visa application, the relevant subclass in this case is Subclass 485, the criteria for which 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 13 August 2012 because the applicant did not have the required English language proficiency. The applicant applied to the Tribunal on 21 August 2012 for review of the delegate's decision.
4. On 7 August 2013, the Tribunal wrote to the applicant and informed him that it had considered the material before it but was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to appear before it, via telephone, on 6 September 2013 to give evidence and present arguments relating to the issues arising in his case. The letter indicated that if he failed to attend the scheduled hearing, the Tribunal could make a decision without taking any further action to allow or enable him to appear before it.
5. This letter was sent to the applicant by registered post to the address for correspondence nominated by him. The records of Australia Post indicate that the letter was delivered on 9 August 2013. The Tribunal did not receive a Response to Hearing Invitation as requested.
6. On 13 August 2013, the applicant contacted the Tribunal by telephone and requested a postponement of the hearing. An officer of the Tribunal informed him that he would need to make that request in writing and provide evidence in relation to the reason for the postponement. A written request for a postponement of the hearing was not received by the Tribunal.
7. On 29 August 2013, an officer of the Tribunal attempted to contact the applicant by telephone but was unable to do so. A message was left for the applicant to inform him that as a written request for a postponement of the hearing had not been received, the hearing would proceed as scheduled. He was requested to contact the Tribunal but did not do so. The applicant did not attend the hearing scheduled on 6 September 2013.
8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

9. The issue in the present case is whether the applicant has competent English as required by cl.485.215. Regulation 1.15C provides that a person has ‘competent English’ if the person:

(a) satisfies the Minister that:

(i) the person undertook a language test, specified by the Minister in writing for this subparagraph; and

(ii) the test was conducted in the 2 years immediately before the day on which the application was made; and

(iii) the person achieved a score specified in the instrument; or

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

10. In the present case, there is no evidence that the applicant has held a passport of a type specified in IMMI 12/018, and as such r.1.15C(b) is not met.
11. For r.1.15C(a)(i) and (iii), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components: Legislative Instrument IMMI 12/018.
12. On 7 August 2013, the Tribunal wrote to the applicant and requested that he provide evidence of competent English, as defined in r.1.15C(a), on or before the hearing date. The requested evidence was not provided to the Tribunal. The applicant did not attend the scheduled hearing on 6 September 2013.
13. There is no evidence before the Tribunal that the applicant has competent English as defined in r.1.15C(a). Accordingly, the Tribunal finds that the applicant does not have competent English as defined in r.1.15C(a). Therefore, the Tribunal finds that the applicant does not meet the requirements of cl.485.215.
14. As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

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

Linda Symons
Member