【Classic Cases】09XXX39 [2009] MRTA 2XX9

09XXX39 [2009] MRTA 2XX9 (13 November 2009)

DECISION RECORD

APPLICANT: Mr BX HuXXg

MRT CASE NUMBER: 09XXX39

DIAC REFERENCE(S): CLF2008/6XX1

TRIBUNAL MEMBER: Andrew Mullin

DATE: 13 November 2009

PLACE OF DECISION: Sydney

DECISION: The Tribunal remits the application for Skilled — Independent Overseas Student (Residence) (Class DD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 880 (Skilled — Independent Overseas Student) visa:

cl.880.223 of Schedule 2 to the Regulations.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

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 — Independent Overseas Student (Residence) (Class DD) visa under s.65 of the Migration Act 1958 (the Act).

The applicant applied to the Department of Immigration and Citizenship for a Skilled — Independent Overseas Student (Residence) (Class DD) visa on 22 July 2007. The delegate decided to refuse to grant the visa on 19 February 2009 and notified the applicant of the decision and his review rights by letter dated 19 February 2009.

The delegate refused the visa application on the basis that the applicant did not satisfy cl.880.223 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The delegate found that the applicant did not satisfy cl.880.223 because he does not have vocational English as defined by r.1.15B of the Regulations.

The applicant applied to the Tribunal on 25 February 2009 for review of the delegate’s decision.

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

The Skilled – Independent Overseas Student (Residence) (Class DD) visa is an onshore permanent visa for eligible overseas students who have been studying in Australia and have recently completed an Australian degree, diploma or trade qualification. This class of visa contains one subclass; Subclass 880 (Skilled – Independent Overseas Student): item 1128CA(4) of Schedule 1 to the Regulations. This visa allows tertiary-qualified overseas students to apply for and have their visas granted in Australia.

The criteria for a Subclass 880 visa are set out in Part 880 of Schedule 2 to the Regulations.

Relevantly to this matter, a primary criterion to be met at the time of decision is cl.880.223 which requires that the applicant has ‘vocational English’.

Vocational English is defined in r.1.15B of the Regulations. For visa applications lodged after 1 July 1999, r.1.15B(3) and (4) relevantly provide:

(3) If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if the person satisfies the Minister that the person has achieved an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted:

(a) not more than 12 months before the day on which the application was lodged; or

(b) during the processing of the application.

(4) If a person applies, on or after 1 July 1999, for a visa a criterion for the grant of which is that the person has vocational English, the person has vocational English if:

(a) the person does not have an IELTS test score in a test conducted:

(i) not more than 12 months before the day on which the application was lodged; or

(ii) during the processing of the application; and

(b) the Minister:

(i) determines that it is not reasonably practicable, or not necessary, for the person to be tested using the IELTS test; and

(ii) is satisfied that the person is proficient in English to a standard that is not less than the standard required under subregulation (3).

CLAIMS AND EVIDENCE

The Tribunal has before it the Departmental and Tribunal files relating to the applicant. The Tribunal also has had regard to the material referred to in the delegate's decision.

The applicant appeared before the Tribunal on 13 November 2009 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

The applicant was represented in relation to the review by his registered migration agent, appointed by him on 10 November 2009, who attended the hearing.

Information before the Tribunal indicates that the applicant arrived in Australia on 1 July 2004 as the holder of a subclass 572 Vocational Education and Training Sector student visa. He pursued his studies at Information Technology Training Institute, obtaining a Diploma in Software Development, and subsequently at Central Queensland University where, in 2007, he obtained a degree in Bachelor of Information Technology. He subsequently commenced a course in Diploma of Business.

The applicant applied for a Class (DD) subclass 880 Skilled Independent Overseas Student visa on 22 July 2007.

Information on the Departmental file indicates that on 7 April 2008 the Department wrote to the applicant and requested him to provide IELTS test results. No response was received from the applicant and on 28 November 2008 the Department wrote to him once more to request IELTS test results. The applicant subsequently provided a number of documents to the Department including:

A tax invoice/receipt, dated 28 November 2008, for an IELTS fee for a test to be conducted on 27 June 2009.

Documents from Central Queensland University confirming that he graduated with a degree in Bachelor of Information Technology,

A positive skills assessment from the Australian Computer Society Inc. dated 28 June 2007.

Photocopies of pages from the applicant’s People's Republic of China passport.

No evidence was provided to the Department of the applicant’s IELTS test results and on 19 February 2009 the delegate decided to refuse to issue the visa because the applicant had not demonstrated that he had Vocational English by achieving a score of at least 5.0 in each of the four components of the IELTS test. The delegate found the applicant had not demonstrated he had Vocational English as required in r.1.15B and did not satisfy the requirements of regulation 880.223.

The applicant submitted an affidavit at the hearing on 13 November 2009. This reads, in part:

......

11. On 22 July 2007, I applied for a Skilled - Independent Overseas Student (Class DD, Sub class 880) visa online. I did not receive any help at all. I provided almost all my required documents electronically except for my IELTS score as I had not written the exam yet.

12. Shortly after I have applied for the visa, I understood that I needed to have my IELTS report ready. I applied for a sitting and I wrote my first IELTS.

13. After 2 weeks I received my marks. All four categories were above 5. However I was under the impression that I was required to have at least all 6s in the four categories to meet the minimum requirement. Therefore I applied for another IELTS exam again. I also did not inform anybody about these scores. ......

14. By the end of 2007, I still had not received any responses. I then emailed the Department to inquire about my status.

15. On 31 December 2007, I received an email from DIAC stating that they are currently experiencing a backlog and applications will be processed accordingly.

16. In mid 2008, I started my study of Master of Information Technology at University of Sydney.

17. From the beginning of 2008 to November 2008, I have written the IELTS for about 3 times. Each time I have obtained a score of at least 5 on all four categories. However since I thought that the requirement was all 6s, I did not report my test results to DIAC.

18. By November 2008, I still had not heard anything from the Department. I became quite antsy so I engaged in an immigration agency - Australian Pacific Migration Services in Sydney - to deal with my application for me.

19. When I entered Australian Pacific Migration Services, I spoke with StephXXXX LX whom represented herself as a migration agent. I said to her, in words to the effects of: "I've put in my application for a long time and I still have not heard anything from the Department yet. Can you follow up my case and let me know my situation? I also have not obtained four 6s on IELTS.

" StephXXXX: "If you do not have all 6s yet then don't bother giving the result to DIAC. Just hang on to your results."'

20. On 28 November 2008, I received an email from the agent along with a letter that was sent from the Department......

21. The letter clearly states that the Department had requested further information from me on a letter dated 7 April 2008. However I do not recall seeing such a letter. I also did not see the letter in the package of documents that I received from the MRT later on.

22. After I received this letter, I immediately consulted with StephXXXX. She suggested that since I have not obtained the required marks in IELTS (although now I realized is incorrect), I should provided DIAC with an IELTS application receipt. I gave her my receipt a few days later. .......

23. I had not heard anything from DIAC or my agent since then.

24. On 20 February 2009, I received an email from the Department via StephXXXX. I realized that my application has been refused.

25. I immediately called StephXXXX and asked her what happened. She said to me, in words to the effects of:

StephXXXX: "Your IELTS marks are not good enough. However you can appeal this decision."

26. I did not want to use StephXXXX as my agent anymore. I went to PacXXXX RiX International Group to get assistance for my MRT appeal.

27. On 25 February 2009, NXX CAO - the agent at PacXXXX RiX International Group - applied for a review at the MRT.

28. During this time, I have written the IELTS for 7 or 8 times. I did so because I was under the false impression that I need four 6s. I have been able to obtain at least all 5s in all tests written. I tried very hard and 1 have always only missed getting all 6s by a little bit. .......

29. In the beginning of September 2009, NXX telephoned me to inform me that my case has been assigned a hearing date - 14 October 2009.

30. However, a few days before the hearing date NXX informed me that the Presiding Member of my case had personal matter to attend to and the date had to be changed. It was then changed to 4 November 2009.

31. On 3 November 2009, unfortunately I fell ill. I went to a doctor and obtained a doctor's note. I subsequently instructed NXX to inform the MRT that I was unfit for the hearing.

32. On 4 November 2009, NXX informed me that he has received confirmation that the hearing date has been postponed to 13 November 2009. He stressed to me that I will not be able to win the MRT case since I "did not obtain all 6s" on my IELTS.

33. On 9 November 2009, I visited NXX's office and informed him that I no longer wish to have him represent me. I felt that he did not put my needs as priority. I did not see the need to retain him as my representative anymore. I wanted a lawyer to represent me.

34. Immediately after, I went to MRT office in Sydney to cancel NXX's representation. 35. On the same day, I went to Austin Haworth & Lexon for further advice.

36. On 10 November 2009, 1 decided to use Daniel Sheen as my agent in this MRT appeal case.

37. On 11 November 2009, 1 went to the MRT office again to collect all my documents from DIAC and MRT. I handed these documents to my current agent at Austin Haworth & Lexon Legal in the same afternoon. This was the first time ever that I realized all I needed to be considered is to have vocational English meaning having all 5s in the four JELTS categories.

38. I have gotten at least all 5s since the first time I wrote the IELTS for immigration purposes. However none of the previous agents had informed me that my 5s were good enough to meet the requirement. I feel very disappointed at them and how they may have messed up my life.

.Attached to the affidavit are four IELTS test result reports for tests conducted on 20 October 2007, 26 July 2008, 27 June 2009 and 27 September 2009. In each test the Applicant has achieved a score of at least 5 in each of the four components of listening, reading, writing and speaking. In the most recent of the tests he is shown as achieving scores of 5.0, 6.0, 6.5 and 6.5 respectively.

In his oral evidence the Applicant confirmed the claims set out in his affidavit.

FINDINGS AND REASONS

The issue in the present case is whether the applicant meets cl.880.223.

On the information before it the Tribunal is satisfied that the applicant has undergone an IELTS test during the processing of the application, namely on 27 September 2009. The Tribunal has verified the results of the test and accordingly is satisfied the applicant achieved the scores, indicated above, of 5.0, 6.0, 6.5 and 6.5. for listening, reading, writing and speaking.

The Tribunal finds on this basis that the applicant has ‘vocational English’ as defined in r.1.15B(3), as it is satisfied that he has achieved a score of at least 5 for each of the 4 test components of speaking, reading, writing and listening in a test conducted not more than 12 months before the day on which the visa application was lodged or during the processing of the application.. Accordingly, as the Tribunal is satisfied that the applicant has vocational English, he meets cl.880.223.

The Tribunal also notes, in this context, the applicant’s evidence concerning the advice given to him by two previous migration agents, whom he identifies. The Tribunal has no direct evidence of the advice which was given to the applicant by these previous advisers. However, his persistence in repeatedly sitting for IELTS tests (he claims on no less than seven occasions) when he had no need to do so (having achieved scores sufficient to satisfy the requirement for vocational English as early as October 2007) lends weight to his claims. At the very least he appears to have been given fundamentally wrong advice by both these persons, as a result of which he, the Department and the Tribunal have been put to needless expense and waste of time.

CONCLXSIONS

For the reasons given above, the Tribunal finds that the applicant meets cl.880.223, being a prescribed criterion for the grant of a Subclass 880 visa. The matter will now be remitted to the Department for reconsideration.

DECISION

The Tribunal remits the application for Skilled — Independent Overseas Student (Residence) (Class DD) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 880 (Skilled — Independent Overseas Student) visa:

cl.880.223 of Schedule 2 to the Regulations.

Andrew Mullin

Member