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

You are here: 

1207363 [2012] MRTA  2430  (22 August 2012)

Last Updated: 5 September 2012

1207363  [2012] MRTA 2430  (22 August 2012)

DECISION RECORD

APPLICANT: Mr Sejin Yoo

MRT CASE NUMBER: 1207363

DIAC REFERENCE(S): BCC2011/127422

TRIBUNAL MEMBER: Brook Hely

DATE: 22 August 2012

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 11 March 2011. The delegate decided to refuse to grant the visa on 17 May 2012.
3. The delegate refused the visa on the basis that the applicant did not satisfy cl.485.215 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the applicant had not provided evidence of the relevant level of English ability for the grant of this visa. The delegate also found that the applicant did not satisfy the requirements of a subclass 487 visa because the applicant had not been relevantly nominated by a State or Territory government or sponsored by a relevant family member.
4. The applicant applied to the Tribunal on 29 May 2012 for review of the delegate’s decision.

RELEVANT LAW

5. 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).
6. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 485 visa.

Criteria in issue

7. 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.
8. Clause 485.215 requires that the applicant has competent English.

Defined terms

9. ‘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.

10. 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.
11. 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), passports issued by the United Kingdom, United States of America, Canada, New Zealand or Ireland: Legislative Instrument IMMI 09/073.
12. 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

13. 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.

Application to the Department

14. On 11 March 2011, the applicant lodged with the Department the application under review.
15. On 17 May 2012, a delegate of the Minister refused the application because there was no evidence that the applicant had ‘competent English’ and the applicant therefore did not meet the requirements of cl.485.215. The delegate also found that the applicant did not satisfy the requirements of a subclass 487 visa because the applicant had not been relevantly nominated by a State or Territory government or sponsored by a relevant family member.

Application to the Tribunal

16. On 29 May 2012, the applicant applied to the Tribunal for review of the delegate's decision.
17. On 26 July 2012, the applicant’s representative advised the Tribunal that the applicant was scheduled to undergo a further IELTS test on 3 and 4 August 2012.

Tribunal hearing

18. The applicant appeared before the Tribunal on 16 August 2012 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Korean and English languages. The applicant was represented in relation to the review by his registered migration agent, who also appeared at the hearing.
19. The Tribunal put to the applicant the finding of the delegate that he had not provided evidence of the relevant level of English ability for the grant of this visa. The applicant confirmed that he did not presently possess evidence of competent English, although he has sat the test several times. He handed up the results of two IELTS tests dated 21 February 2011 and 11 April 2011, although neither of these test results recorded a score of at lest 6 in each of the 4 test competencies. He noted that he had recently sat another IELTS test on 3 and 4 August 2012 and was expecting to receive the results in the next 1 – 2 days. He requested that the Tribunal hold off on making its decision until after the results of that test become available. The Tribunal agreed to this request and asked that the results be provided by no later than 21 August 212.
20. The Tribunal explained to the applicant that, whilst it was obliged to also consider his eligibility for a subclass 487 visa, it appeared that he was not eligible for this visa as he had not paid the applicable application fee at the time of application and, accordingly, his application for a subclass 487 visa appeared to be invalid. The applicant did not dispute this and his representative agreed that the applicant was not eligible for a subclass 487 visa.
21. When asked if there was anything else to add, the applicant’s representative noted that the applicant may require a further chance to sit an IELTS test. The Tribunal explained that it may have difficulty accepting any further requests for extension of time given that the applicant has already had a significant period of time in which to produce evidence of competent English.

Post-hearing correspondence

22. On 17 August 2012, the applicant provided to the Tribunal the results of his IELTS test undertaken on 4 August 2012, which recorded scores of 6.0 (listening), 6.5 (reading), 6.0 (writing) and 6.0 (speaking). The Tribunal has verified these IELTS results as genuine.

FINDINGS AND REASONS

23. On the evidence before the Tribunal, the applicant nominated a skilled occupation of management consultant and at the relevant time, held a passport of South Korea.
24. The Tribunal is satisfied on the basis of the latest IELTS test results provided 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 (as interpreted in light of Berenguel). The Tribunal therefore finds that the applicant has competent English as defined in r.1.15C. It follows that he meets the requirements of cl.485.215.

CONCLUSIONS

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

DECISION

26. 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.
      

Brook Hely
Member