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MRT appeal successful for applicant without competent English at time of DIAC decision (Subclass 485)

The contents of this article are correct as at 23 February 2009

Our firm successfully represented a Migration Review Tribunal (“MRT”) applicant, who:

· lodged a subclass 485 application prior to 27 October 2008,

· did not have competent English at the time of lodgement,

· had evidence of an IELTS test booking,

· failed to achieve an IELTS test result, showing competent English, before DIAC made its decision to refuse the 485 application.

The case is relevant to all 485 visa applications lodged before 27 October 2008.

The decision was handed down on 12 February 2009, and is not yet reported.

Summary of the case
Our client sought our assistance after he was refused a Skilled (Provisional) (Class VC), subclass 485 (Skilled - Graduate) visa by DIAC.

Our client relied on clause 485.215(c) of the Migration Regulations, a time of application criterion, which provides that an applicant can submit evidence of arrangements to undergo a language test to satisfy clause 485.215. (Subclause 485.215(c) has since been omitted by amendments made to the Regulations on 27 October 2008 but applied in our client’s case as it was in force at the time of our client’s visa application.)

An applicant who has relied upon clause 485.215(c) by providing evidence of an IELTS booking is then required to meet the time of decision criterion outlined in clause 485.222 which provides that at the time of the decision the applicant must have either vocational or competent English according to their nominated occupation. Our client was required to have competent English.

Our client’s application was refused by DIAC on 20 May 2008 as his first IELTS result did not demonstrate competent English. He appealed to the MRT and was subsequently assessed as having competent English in a test undertaken on 25 October 2008.

The definition of competent English is found in Regulation 1.15C(a)(i). The relevant part of the definition in our client’s case, was the meaning of: ‘the person has achieved, in a test conducted not more that 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.’

A previous MRT decision held that the definition of competent English meant that an IELTS result produced after the application could not be used as evidence of competent English. (071861705 [2008] MRTA 828 (17 September 2008)).

We argued that the post-application result had to be taken into account as evidence of English competency for a number of reasons.

Firstly, it was necessary to consider the wording of the Regulations and their context within the framework of the Graduate Temporary visa regime. It would be absurd and create false expectation on the part of applicants, if Regulation 1.15C was interpreted to render Regulation 484.215(c) ineffective. It could not have been the intention of Parliament for the regulatory system to allow applicants to apply with an IELTS booking but never grant visas because the applicants would never have an IELTS result dated prior to their application. We argued that an alternative approach that avoids irrationality and injustice should be adopted.

Secondly, we argued that interpretative exercises should follow the approach of understanding legislative provisions in their compound form, rather than as isolated segments. Thus, the requirement is not that the IELTS result must originate only in the two years preceding application but rather that it must not be more than two years old at the time of application. In other words, we argued that Regulation 1.15C imposes a retrospective limit but not a prospective limit on the validity of IELTS results.

Thirdly, we argued that our interpretation best fitted the policy underlying the English language requirements in the context of the General Skilled Migration program, which is that graduate visa holders are able to settle into the Australian community.

The Tribunal member simply decided that since our client met the requirements of 485.215(c) by virtue of booking a test, and had an IELTS result evidencing competent English at the time of decision (being the MRT decision), our client met the relevant criteria and so his matter should be remitted to DIAC.

The case is also significant because the IELTS results that satisfied the requirement of English competency were not produced as a result of the test booking that satisfied the requirements of subclause 485.215(c).

The decision may be of relevance to other types of visa applications involving assessment of English language levels of applicants.

If you would like to discuss the legal implications of the decision, its relevance to your circumstances or would like us to assist with your application to the MRT, please click here to contact us.