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1202714 [2013] MRTA  811  (19 March 2013)

Last Updated: 16 May 2013

1202714  [2013] MRTA 811  (19 March 2013)

DECISION RECORD

APPLICANT: Mr Lekhnath Gurung

MRT CASE NUMBER: 1202714

DIAC REFERENCE(S): BCC2010/576348

TRIBUNAL MEMBER: John Billings

DATE: 19 March 2013

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 criterion 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 23 December 2010. The delegate decided to refuse to grant the visa on 13 February 2012.
3. The delegate refused the visa 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 had not given evidence of competent English.
4. The applicant applied to the Tribunal on 29 February 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), the Minister has specified passports issued by the United Kingdom, the 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 applicants. 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.
14. There was no hearing. In the circumstances of the case, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it: see s.360(2)(a) of the Act.
15. The applicant is a national of Nepal. He first arrived in Australia on 15 February 2007 holding a passport issued by that country and a Class TU student visa. A copy of relevant pages from his passport is held on the Department’s and the Tribunal’s file. The applicant has departed and re-entered Australia twice since he first arrived.
16. According to the visa application the applicant obtained a Diploma of Commerce from the Melbourne Institute of Business and Technology following a course of study from February 2007 to February 2008, and a Bachelor of Accounting degree from CQ University following a course of study from March 2009 to July 2010. His nominated occupation is Accountant (General). He stated in the application that he had not undertaken an English test in the 24 months preceding the date of the visa application.
17. The applicant did not provide any IELTS test report form to the Department. The applicant has however provided an IELTS test report form to the Tribunal. That is dated 2 August 2012 and relates to a test taken on 21 July 2012. The report form indicates that the applicant received the following scores: Listening 6.5; Reading 6.0; Writing 6.0; and Speaking 6.5. He therefore scored at least 6 for each of the 4 relevant test components in both tests. The Tribunal has obtained independent verification of that information. The Tribunal notes that the test was undertaken and the test report form created after the date of the decision under review.

FINDINGS AND REASONS

18. The issue in the present case is whether the applicant meets cl.485.215.
19. On the evidence before the Tribunal, the applicant nominated a skilled occupation of Accountant (General) and at the relevant time held a passport of Nepal.
20. 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 IELTS tests 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.
21. The Tribunal finds that the applicant satisfies cl.485.215.

CONCLUSIONS

22. 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 criterion for a Subclass 485 (Skilled - Graduate) visa:

• cl.485.215 of Schedule 2 to the Regulations.
  

John Billings
Senior Member