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标题: 走过,漫漫路的我 [打印本页]

作者: fushenjie2004 时间: 2011-12-31 03:52
标题: 走过,漫漫路的我
本帖最后由 fushenjie2004 于 2011-12-31 04:53 编辑

来澳洲8年半了.可以算是老澳洲了.........
此时的心情或许没有可以想象,但这毕竟是自己的经历. 撇开爱情的的一切,因为自己至今没有都没有接受.
说说我最亲爱的485签证吧.
在2008年那个多事的年份, 毕业的我面对刚刚改革的移民法.不得不为自己多多考虑. 开始找了NEW FARM DELI 做我的工作签证.一切顺利的都要办签证了.结果老板不可以接受那时的工资要求.结果我最后只有转到485签证.
而就因为这个原因, 那愚蠢的中介在3月4日递交了我的申请. 但我的IELTS是2月23日考试的.根据那是的法律是我要么有合格的成绩或报名了未来的考试. 这点在法律上就有了很大的麻烦.尤其是那次考试没有过的情况下.
在9月30日收到移民的补交资料的通知后,我那是没有合格的成绩而且没有符合语言提交的最低要求.在10月8日给通知拒签.
那时我毫不忧郁的选择了上诉.当然人家说很简单的.一定可以赢的.
在漫长一年的等待有11月7日有了CASE OFFER. 11月15日开庭. 以为可以安全度过.但庭上的感觉却让我失望.....最后结果也就是败诉..在准备回家的同时, 寻找一切方法看看是否有机会留下.
或许是上天的玩笑.TONY 一个原本我找过的中介,但觉得费用高而且不熟悉我的CASE,所以才没有给他做,但就是他介绍了大律师.为我改写了未来的人. 但是5500的律师费让走投无路的我,大胆一拼.当然那时父母对我已经失望到顶,甚至希望我放弃回来. 而且对我是一直的泼冷水.
但12月16日在被要求离境的最后一天,成功上诉联邦地方法院.(FMA) 下午就去移民局换好了过桥A的签证.

作者: fushenjie2004 时间: 2011-12-31 03:53
本帖最后由 fushenjie2004 于 2011-12-31 04:08 编辑

2010年那艰难痛苦中的我.

2月8日的首次开庭,决定了在5月12日开庭审理. 结果4月最高法院的一个判决,短暂的改变了一切,但移民局因为我的考试日期和申请的时间问题,决定继续.
6月7日的正式开庭,面对我律师炮轰式的发言,移民局的律师却没有什么反驳的机会.一切以为简单明了.
但之后却是一年的等待........家人的责备,恋人的不满,加上.........
等待却是这么的漫长...

作者: fushenjie2004 时间: 2011-12-31 03:55
2011风回路转.
败诉,上诉,撤诉,改判,下套,最后成功的一年.

作者: fushenjie2004 时间: 2011-12-31 03:56
一个没有结束的开始,一个不知道未来的我

作者: fushenjie2004 时间: 2011-12-31 04:08
本帖最后由 fushenjie2004 于 2011-12-31 04:16 编辑

多留个给自己,放点资料来
MRT 的一个结果. http://www.austlii.edu.au/au/cases/cth/MRTA/2009/2619.html

0807243 [2009] MRTA 2619 (18 November 2009) Last Updated: 26 November 2009
0807243 [2009] MRTA 2619 (18 November 2009)

DECISION RECORD

APPLICANT: Mr Shen Jie Fu
MRT CASE NUMBER: 0807243
DIAC REFERENCE(S): BCC2008/5739
TRIBUNAL MEMBER: Kira Raif
DATE: 18 November 2009
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

Migration Act 1958

The applicant applied to the Tribunal on 30 October 2008 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 applicant has not indicated that he is either nominated by a State or Territory government agency or sponsored by a relative of a kind specified in cl.487.213(3)(d) who is an Australian citizen, permanent resident or eligible New Zealand citizen as required by cl.487.213. Therefore, the relevant subclass for consideration is Subclass 485.

Criteria in issue

the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl.485.215(c)).

the applicant has competent English (cl.485.222(b))

The language tests specified by the Minister for these purposes are International English Language Testing System (IELTS) and Occupation English Language test (OELT): Legislative Instrument IMMI07/055, English Language Tests and Level of English Ability for General Skilled Migration (Regulations 1.15C, 1.15D and clauses 485.215 and 487.215).

Defined terms

‘Vocational English’ is defined in r.1.15B of the Regulations. For Subclass 485 visa applications, r.1.15B(5) relevantly provides that a person has ‘vocational English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

(a) an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or
(b) a score:
(i) specified by the Minister in an instrument in writing for this sub-subparagraph; and
(ii) in a language test specified by the Minister in the instrument.

‘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.

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

The applicant confirmed that he did not have a nomination by State or Territory or sponsorship by another person and that he did not meet the requirements for the grant of the subclass 487 visa.

FINDINGS AND REASONS

The Tribunal does not accept that a test completed before the application is made can constitute evidence of arrangements to undergo a language test. As the Federal Court held in Grant at [31]:

an arrangement to undergo something involves an element of futurity, in the sense of a thing yet to be done. Where a visa applicant has made an arrangement for an IELTS test and has already undertaken the test, there is no longer an arrangement to undergo anything in the future and cannot satisfy cl.485.215(c).

The applicant referred to the inconsistency and unfairness of IELTS testing. He provided evidence of his language proficiency, including evidence of his employment. The Tribunal accepts that the applicant’s English language proficiency is of a high standard and that he has been able to secure gainful employment. However, the applicant’s ability to engage in employment is not an issue before the Tribunal. As the Tribunal is not satisfied that the applicant meets one of the requirements for the grant of the visa, he is not entitled to be granted the visa for which he has applied.

CONCLUSIONS

Given the findings above, the Tribunal affirms the decision under review.

DECISION

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

Kira Raif
Member

作者: fushenjie2004 时间: 2011-12-31 04:19
联邦地方法庭的判决:http://www.austlii.edu.au/au/cases/cth/FMCA/2011/304.html
Fu v Minister for Immigration & Anor [2011] FMCA 304 (28 April 2011)
Last Updated: 4 May 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

FU v MINISTER FOR IMMIGRATION & ANOR [2011] FMCA 304

MIGRATION – Categories of visas – skills based visas – criteria for grant – time of application criteria test – English language proficiency – arrangements to undergo language test – language test taken before time of application but results not received – visa criterion not satisfied.

Migration Act 1958 (Cth), s.65
Migration Regulations 1994, Sch. 2, cll.485.215(a), 485.215(b), 4895.215(c)

Minister for Immigration and Citizenship v Grant [2009] FCA 1059; (2009) 180 FCR 179
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251

Applicant: SHEN JIE FU

First Respondent: MINISTER FOR IMMIGRATION & CITIZENSHIP

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 962 of 2009

Judgment of: Jarrett FM

Hearing date: 10 June 2010

Date of Last Submission: 10 June 2010

Delivered at: Brisbane

Delivered on: 28 April 2011

REPRESENTATION

Counsel for the Applicant: Mr Boccabella

Solicitors for the Applicant: A J Torbey & Associates

Counsel for the Respondents: Mr Bickford

Solicitors for the Respondents: Clayton Utz

ORDERS

(1) The application filed on 16 December, 2009 is dismissed.
(2) The applicant pay the first respondent’s costs fixed in the sum of $5,865.00.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT BRISBANE

BRG 962 of 2009

SHEN JIE FU

Applicant

And

MINISTER FOR IMMIGRATION & CITIZENSHIP

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

At the time that Mr Fu applied for a Class VC, sub-class 485 Skilled – Graduate visa cl.485.215 of the Migration Regulations 1994 specified certain criteria that needed to be satisfied at the time of making the application for the visa. Relevantly, Mr Fu’s application needed to be accompanied by evidence that he had made arrangements to undergo a certain language test as specified in the Regulations.
Mr Fu sat the relevant language test a few days before he lodged his visa application. He did not have the results of his test at that point, but his application was accompanied by evidence that he had sat the test and was awaiting the results.
Mr Fu’s visa was refused by the Minister’s delegate in the first instance for reasons that I have set out below. On review by a migration review tribunal, the delegate’s decision was affirmed, although for different reasons. The gravamen of the Tribunal’s decision was that the phrase “has made arrangements to undergo a language test” where it appears in the relevant criterion does not contemplate a situation where the visa applicant had sat the relevant test before the visa application was lodged but was awaiting the results at the time of making the application. According to the Tribunal’s reasons, the relevant criterion could only be satisfied if the application was accompanied by evidence that arrangements had been made to sit the test after the application was submitted.
In this application for the issue of constitutional writs, Mr Fu argues that the Tribunal’s interpretation of cl.485.215 of the Regulations is wrong and by misinterpreting the Regulations the Tribunal committed jurisdictional error. He concedes that unless he can demonstrate jurisdictional error by the Tribunal, this application must fail.
Although the outcome might be surprising, I am against Mr Fu’s argument. For the reasons set out below, in my view the Tribunal has made no error.
The Statutory Scheme

The Minister may grant a non-citizen permission (a visa) to travel to and enter Australia or to remain in Australia (or both): Division 3 of the Migration Act 1958 and particularly s.29 of the Act.
Classes of visa are prescribed by the Regulations and the criteria that must be satisfied for each class of visa are also specified. Some criteria must be satisfied at the time the application for the visa is made. Other criteria must be satisfied at the time the decision is made about the visa application. Section 65 of the Act provides, amongst other things, that if the prescribed criteria for the grant of a visa are satisfied, the Minister is to grant the visa.
For the visa applied for by Mr Fu, a number of criteria are prescribed for satisfaction at the time the application for the visa is made. They are to be found in cl.485.21. At the time that is material to this case, cl.485.215 required that either:
Mr Fu’s nominated skilled occupation was in Major Group IV in the Australian Standard Classification of Occupation, and Mr Fu had vocational English (cl.485.215(a)); or
Mr Fu had competent English (cl.485.215(b)); or
the application was accompanied by evidence that Mr Fu had made arrangements to undergo a language test specified by the Minister in an instrument in writing for the relevant regulation (cl.485.215(b)).
Where cl.485.215(c) applied because the visa application was accompanied by evidence that the visa applicant had made arrangements to undergo a specified language test, the visa applicant must also satisfy cl.485.222 at the time of the decision on the visa application. At the time that is material to this case that clause required that:
Mr Fu’s nominated skilled occupation was in Major Group IV in the Australian Standard Classification of Occupation, and Mr Fu had vocational English; or
Mr Fu had competent English.
Vocational English is defined in reg.1.15B of the Regulations. For sub-class 485 visa applications, reg.1.15B(5) relevantly provides that a person has vocational English if the person satisfies the Minister that the person has achieved, in a test conducted not more than two years before the day on which the application was lodged:
an International English Language Testing System (IELTS) test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or
a score:
specified by the Minister in an instrument in writing for sub-paragraph 1.15B(5); and
in a language test specified by the Minister in the instrument.
Competent English is dealt with in reg.1.15C. If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:
has achieved, in a test conducted not more than two 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 for speaking, reading, writing and listening; or
a score
A. specified by the Minister in an instrument in writing for sub-subparagraph 1.15C(a)(ii); and

B. in a language test specified by the Minister in the instrument; or

holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
Thus, the scheme established by the Act at the relevant time required that Mr Fu show that:
he had competent English or vocational English (whichever was appropriate to his circumstances) at the time he applied for the visa; or
at the time he applied for the visa, arrangements were in place to sit the relevant test; and if so
at the time the application was determined, Mr Fu had either competent English or vocational English (whichever was appropriate to his circumstances).
The policy behind these regulations, as Mr Fu submits, seems to be to ensure that if visa applicants do not meet the relevant language requirements when the visa is applied for arrangements are in hand so that the language requirements might be met at the time a decision is made on the visa application.
Some Facts

Mr Fu is a Chinese National who holds a valid Chinese passport. He arrived in Australia in August, 2003 as the holder of a student visa. In November 2007 he completed a Certificate III in Hospitality (Patisserie) at an Institute of TAFE.
There is no dispute that to secure his sub-class 485 Skilled Graduate visa Mr Fu needed to satisfy the requirements of cl.485.215(c) of the regulations at the time of his visa application. At the time of his application he had neither vocational English nor competent English for the purposes of the Regulations and so neither ccl.485.215(a) or 485.215(b) applied to him.
On 23 February 2008 Mr Fu sat an IELTS test. Because his nominated skilled occupation fell in Major Group IV in the Australian Standard Classification of Occupation, Mr Fu needed results that qualified him as having vocational English.
On 4 March 2008, but before his language test results became available, he applied for a sub-class 485 Skilled Graduate visa.
The results of the IELTS test were available about eleven days later on 15 March 2008. Mr Fu’s overall score was lower than was necessary to qualify him as having vocational English. Thus, even if he had waited for his test results before making his visa application, he would not have satisfied cl.485.215(a) of the Regulations.
Mr Fu never provided the results of his 23 February test to the person delegated by the Minister to decide his visa application. Instead, he sat another test on 9 August 2008, but the results of that test were insufficient to meet the definition of vocational English.
On 6 October 2008, the delegate refused to grant Mr Fu his sub-class 485 Skilled Graduate visa on the basis that he did not satisfy cl.485.222 – that is, Mr Fu did not have vocational English. Mr Fu sought review of the Delegate’s decision on 30 October 2008.
On 8 November 2008, Mr Fu sat another IELTS test and on 15 January 2009 he was notified that he had scored sufficiently to satisfy the Regulations so that it could be said that he had vocational English.
On 7 October 2009, the Tribunal affirmed the delegate’s decision to refuse the visa.
The Tribunal’s decision

After setting out the relevant statutory requirements, the Tribunal identified that: “The issue in the present case is whether the applicant has provided evidence of the relevant level of English ability for the grant of the visa”.
The Tribunal found:
Mr Fu’s nominated skill occupation was in ASCO Major Group IV;
At the time of making his visa application there was no evidence that Mr Fu had achieved appropriate scores in either an IELTS test or another authorised test;
Mr Fu did not meet the requirements of cl.485.215(a) because he did not have vocational English at the time of his visa application;
Mr Fu did not satisfy cl.485.215(b) because he did not have competent English at the time of his visa application.
The Tribunal then turned attention to cl.485.215(c). Relying upon Minister for Immigration and Citizenship v Grant [2009] FCA 1059; (2009) 180 FCR 179 the Tribunal reject the proposition that Mr Fu could rely upon the IELTS test that he had completed before his visa application as evidence of arrangements to undergo the relevant test. According to the Tribunal at [37]:
“A test undertaken by the applicant prior to the application is not sufficient to meet the requirements in cl.485.215(c) because at the time of the application, there were no longer any arrangements to undergo a test.”
Consideration

Minister for Immigration and Citizenship v Grant presents as an insurmountable hurdle to the success of Mr Fu’s application. Grant is a decision of a single judge sitting as the Full Federal Court determining an appeal from the Federal Magistrates Court.
Grant concerned the proper construction of cl.485.215(c) of the Regulations. In that case, Mr Grant had applied for a skilled migration visa. Before doing so he had undertaken an IELTS test and had received the results. The results were insufficient for it to be said that he had either competent English or vocational English for the purposes of cll.485.215(a) or 485.1215(b) of the Regulations. But Mr Grant argued that he could demonstrate at the time of his visa application that he “has made arrangements to undergo a language test” for the purposes of cl.485.215(c) of the Regulations.
Three possible interpretations of cl.485.215(c) were identified in Grant. They are (as set out at [2] of the judgment in Grant):
(1) The words do not exclude a case where an applicant has arranged and undergone a language test before the making of the application. This is the meaning which Mr Grant advances and which the Federal Magistrates Court accepted. I refer to this as meaning 1.
(2) The words exclude a case where an applicant has arranged and undergone a language test before the making of the application as, in such a case, there is nothing left to “undergo”. This is the meaning which the Minister for Immigration and Citizenship advances. I refer to this as meaning 2.
(3) The words do not exclude a case where an applicant has arranged and undergone a language test before the making of the application provided the results of the test have not also been obtained by that time. This is a meaning which I identified during the course of argument. I refer to this as meaning 3.
The ratio in Grant is that meaning 1 is not the proper construction of cl.485.215(c). In that respect, Jagot J said:
25 When the scheme established by the relevant provisions is construed as a whole in accordance with these requirements, I am satisfied that the construction adopted by the Federal Magistrates Court (that is, meaning 1) cannot stand either as a matter of language or by reference to an inferred legislative intention to avoid consequences that appear irrational or unjust. My reasons are as follows.
26 It is apparent from the structure of cll 485.21 and 485.22 of Sch 2 to the Migration Regulations that they are dealing, respectively, with requirements that must be satisfied at the time of making and deciding an application for the relevant subclass of visa. Both are criteria that must be satisfied in order to empower the Minister to grant a visa in response to a valid application (s 65 of the Migration Act). Accordingly, I do not accept the submissions on behalf of Mr Grant that the criteria to be satisfied at the time of application are merely procedural. The requirements are substantive in the sense that, if not satisfied, the Minister (and thus the Tribunal) is bound to refuse the grant of a visa. Further, it is equally apparent that cll 485.215(c) and 485.222 are linked in the sense that an applicant who relies on cl 485.215(c) to satisfy the criteria at the time of application must also satisfy cl 485.222 to satisfy the criteria at the time of decision.
27 With these propositions in mind it is clear that, if an applicant could not satisfy cl 485.215(a) (as in the present case), the scheme permitted an applicant to satisfy the requirements at the time of application by one of two methods. First, the applicant could establish competent English at the time of application (cl 485.215(b)), in which event no further language requirement would apply at the time of decision. An applicant would do so by arranging to take, taking and obtaining the results of an IELTS test showing the required score for each component before the time of application. Second, the applicant could establish the making of arrangements to undergo a language test (cl 485.215(c)), in which event the applicant also would have to establish competent English at the time of decision (cl 485.222).
28 In this context the words “the application is accompanied by evidence that the applicant has made arrangements to undergo a language test” are directed towards an outcome contemplated by cl 485.222, being proof that an applicant has “competent English”. The purpose of the provision, to enable an applicant to demonstrate competent English at the time of application or of decision, is best achieved by giving the words their ordinary meaning. The ordinary meaning of the phrase “has made arrangements to undergo” involves two key aspects. First, the arrangements must have been made, in the sense of being in place or in existence, when the application is made. Second, the arrangements must be to undergo, in the sense of to take or to sit for, a test.
29 Accordingly, I do not accept Mr Grant’s submission that the function of cl 485.215(c) is simply to define the category of persons to whom cl 485.22 applies. The function of cl 485.215(c) is to identify a requirement that must be satisfied at the time of application because the clause is one of the prescribed criteria for this class of visa.
30 In the present case, it may be accepted that Mr Grant had to make arrangements before he sat the IELTS test for which he received the result on 16 August 2007. The result of the test was that he did not have competent English when he made the application on 24 September 2007. I do not accept that these circumstances satisfied the criteria necessary at the time of application as set out in cl 485.215(c) of Sch 2 of the Migration Regulations. The circumstances do not establish “evidence that the applicant has made arrangements to undergo a language test”. Accordingly, I do not accept meaning 1.
It is immediately apparent that Grant is distinguishable on its facts from Mr Fu’s case. Whereas Mr Grant had sat his test and received the results before his visa application was made, Mr Fu had only sat the test – he had not received his results at the time of making his visa application. Thus, Mr Fu’s case requires a determination as to whether meaning 2 or meaning 3 identified in Grant is the proper construction of cl.485.215(c). As to that, Jagot J said in Grant:
42 In the present case it is not strictly necessary to decide whether meaning 2 or meaning 3 is to be preferred because Mr Grant is only entitled to a visa if meaning 1 is accepted. Nevertheless, I have concluded that the meaning advanced by the Minister in this appeal, being meaning 2, is to be preferred. That is, an applicant “has made arrangements to undergo a language test” within the meaning of cl 485.215(c) if an applicant has arranged to take, but has not yet taken, the test. This is the natural and ordinary meaning of the words of the provision. It is consistent with the wider context of the statutory scheme, specifically enabling an applicant to satisfy the criteria either by demonstrating competent English at the time of application or, provided the applicant has made the arrangement for a test, at the time of decision. The potential anomaly created by this construction (that an applicant would be better off taking a test after the time of application than before if there was any risk of not obtaining the required result before that time) is answered by the fact that demonstrating the making of the arrangement is not onerous and is largely within an applicant’s control.
I accept the Minister’s submission that the passage just cited is obiter but that I should follow it unless I am satisfied that it is clearly wrong. I am not so satisfied.
Mr Fu’s counsel argued that I should treat that passage and the earlier paragraph 26 (set out above) from Grant with considerable caution following the decision in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8; (2010) 84 ALJR 251. In particular my attention was drawn to paragraph 26 of the judgment:
26 Although cl 885.213 is part of the group of clauses headed "Criteria to be satisfied at time of application", the heading does not connect grammatically to its terms. Applying s 13 of the Acts Interpretation Act, it may be regarded as "part of the regulations". It may therefore inform their construction. But the text of Pt 885 does not support any general conclusion that the criteria in Pt 885 speak exclusively to satisfaction at the time of application. For example, cl 885.212 reads:
The Minister is satisfied that the applicant has applied for an assessment of the applicant’s skills for the nominated skilled occupation by a relevant assessing authority.
(Emphasis added.) Moreover, in this case, the construction for which the Minister contends leads to such plain unfairness and absurdity that it is not to be preferred. The alternative construction for which the plaintiff contends does not compromise the purpose of the Migration Regulations. There is nothing to prevent relevant information being submitted to the Minister after lodgment of the application. Indeed, s 55 of the Act expressly provides for that to be done and requires the Minister to have regard to such information. The Act specifically provides that the Minister may have regard to up-to-date information and, where the purpose of the relevant criterion is to ensure that the standard of English language competency is recently ascertained, a construction which would deprive him of the most recent information seems to be antithetical to that purpose.
(My emphasis)

Mr Fu argued that the passage emphasised above meant that he could receive his results after making his application and provide them to the Minister who would be bound to take them into account. He further argued that the fact that he could do so demonstrated that Jagot J’s preference for meaning 2 (as identified in Grant) was erroneous because meaning 2 was inconsistent with the above passage from Berenguel. Meaning 3 was to be preferred.
I see no inconsistency however. Clauses 485.215(a) and 485.215(b) differ from cl.485.215(c) in that the relevant visa application does not have to be accompanied by evidence which demonstrates that the criteria are met. Clause 495.215(c) by its terms requires the application to be accompanied by evidence of the relevant arrangements. The relevant regulations considered in Berenguel had no equivalent to cl.485.215(c). Thus, having sat a test and confident of the outcome, an applicant might apply for a visa on the grounds that they meet the relevant English language competency requirements. No evidence of the relevant standard of competence in English need be provided at the time of application. As Berenguel demonstrates, that evidence might be provided after the application has been made – even to the extent of sitting the relevant English test after the day of the application.
The requirements of cl.485.215(c) are altogether different, however. First, cl.485.215(c) requires a visa applicant to submit evidence of the relevant arrangements with the visa application. Second, as Jagot J explains in Grant cl.485.215(c) requires that those arrangements be arrangements which are yet to be carried out. That is to say, the relevant testing is yet to be undertaken. The timing of the receipt of the results is not to the point because it is the performance in the testing that is important, not when the results are received by either the applicant or the Minister.
Conclusion

Mr Fu did not accompany his application for his visa with evidence that he had made arrangements to undertake a relevant English language test. He had already undertaken the relevant test at the time of his application. Unless he claimed that he had either vocational English or competent English for the purposes of cll.485.215(a) or 485.215(b), the test that he took before lodging his application was irrelevant for the purposes of cl.485.215(c). The application must be dismissed with costs.
I certify that the preceding thirty-six (36) paragraphs are a true copy of the reasons for judgment of Jarrett FM

Associate:

Date: 3 May 2011

作者: fushenjie2004 时间: 2011-12-31 04:26
本帖最后由 fushenjie2004 于 2011-12-31 04:27 编辑

联邦法庭的判决:

未命名.jpg (69.28 KB, 下载次数: 0)

作者: fushenjie2004 时间: 2011-12-31 04:43
MRT的最后判决:http://www.austlii.edu.au/au/cases/cth/MRTA/2011/2307.html
1108672 [2011] MRTA 2307 (30 September 2011)
Last Updated: 14 October 2011

1108672 [2011] MRTA 2307 (30 September 2011)

DECISION RECORD

APPLICANT: Mr Shen Jie Fu

MRT CASE NUMBER: 1108672

DIAC REFERENCE(S): BCC2008/5739

TRIBUNAL MEMBER: Richard Derewlany

DATE: 30 September 2011

PLACE OF DECISION: Sydney

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; and
cl.485.222 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 (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied to the Department of Immigration and Citizenship for the visa on 4 March 2008. The delegate decided to refuse to grant the visa on 6 October 2008 and notified the applicant of the decision and his review rights.
The applicant sought review of the delegate's decision and the Tribunal, differently constituted, affirmed the delegate's decision on 18 November 2009. The applicant sought review of the Tribunal's decision by the Federal Magistrates Court, which dismissed the application. The applicant sought a further judicial review by the Federal Court, which on 11 August 2011 set aside the orders of the Federal Magistrates Court and remitted the matter to the Tribunal to be determined according to law.
The delegate refused the visa application on the basis that the applicant did not satisfy cl.485.222 in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations) because the delegate was not satisfied that the applicant had vocational English.
The matter is now before the Tribunal pursuant to the order of the Federal Court.
RELEVANT LAW

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

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.
Clause 485.215 requires that either:
the applicant’s nominated skilled occupation is in the Australian Standard Classification of Occupations (ASCO) Major Group IV, and the applicant has vocational English (cl.485.215(a)); or
the applicant has competent English (cl.485.215(b)); or
the application is accompanied by evidence that the applicant has made arrangements to undergo a language test specified by the Minister in an instrument in writing (cl.485.215(c)).
Where the application is accompanied by evidence that the applicant has made arrangements to undergo a specified language test, the applicant must also satisfy cl.485.222 at the time of decision. Clause 485.222 requires that:
the applicant’s nominated skilled occupation is in ASCO Major Group IV, and the applicant has vocational English (cl.485.222(a)); or
the applicant has competent English (cl.485.222(b))
The language tests specified by the Minister for these purposes are International English Language Testing System (IELTS) and Occupation English Language test (OELT): Legislative Instrument IMMI07/055, English Language Tests and Level of English Ability for General Skilled Migration (Regulations 1.15C, 1.15D and clauses 485.215 and 487.215).
Defined terms

‘Vocational English’ is defined in r.1.15B of the Regulations. For Subclass 485 visa applications, r.1.15B(5) relevantly provides that a person has ‘vocational English’ if the person satisfies the Minister that the person has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:
(a) an IELTS test score of at least 5 for each of the 4 test components of speaking, reading, writing and listening; or

(b) a score:

(i) specified by the Minister in an instrument in writing for this sub-subparagraph; and

(ii) in a language test specified by the Minister in the instrument.

There is no other language test or score specified for the purposes of r.1.15B(5)(b).
‘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.

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

The Tribunal has before it the Department’s file relating to the applicant.
In his visa application the applicant nominated Pastry Cook (ASCO 4512-13) as his skilled occupation. The applicant stated on the application form that he had undertaken an IELTS test on 23 February 2008. He also provided evidence that he held a Chinese (PRC) passport.
The delegate subsequently wrote to the applicant requesting him to provide the results of the IELTS test undertaken by him. The applicant provided the results of a test he undertook on 9 August 2008, in which he did not achieve a score of at least 5 on each of the four test components. On 6 October 2008 the delegate decided to refuse to grant the visa to the applicant as the delegate was not satisfied that the applicant met cl. 485.222.
The applicant was represented in relation to the review by his registered migration agent.
The applicant provided further evidence to the Tribunal of the results of an IELTS test which he sat on 8 November 2008. The applicant submitted an ‘Enquiry on Results’ application to IELTS after receiving his initial results for that test. On 13 January 2009, IELTS confirmed that as a result of the enquiry, the applicant had achieved scores of 5.5 for Listening, 5.0 for Reading, 5.0 for Writing, and 5.5 for Speaking. A new IELTS test result form reflecting the amended results was issued to the applicant on 15 January 2009.
The Tribunal considers it can make a decision on the review in favour of the applicant, based on the material before it. For this reason the Tribunal has decided it is not necessary to invite the applicant to appear before the Tribunal at a hearing.
FINDINGS AND REASONS

The issue in the present case is whether the applicant meets cl.485.215 and cl.485.222.
On the evidence before the Tribunal, the applicant nominated a skilled occupation of Pastry Cook (ASCO 4512-13) and at the relevant time, held a passport of China (PRC).
The Tribunal finds that the applicant’s nominated skilled occupation is in ASCO Major Group IV, and the applicant must therefore have vocational English.
In Berenguel v MIAC the High Court held that the English language requirement cl.885.213, a time of application criterion, which required the applicant to have either “vocational English” or “competent English”, could be satisfied by a test undertaken after the application had been made. The Court considered that in the context of that criterion, the evident purpose of cl.885.213 was to ensure that when the visa application was decided the applicant will have demonstrated recent competency in the English language. The Court distinguished the text in cl.885.213 (which had no express temporal requirement) from other criteria such as cl.885.214 which required the visa application to be accompanied by evidence.
Berenguel has been expressly applied by the Federal Magistrates Court to the pre 27 October 2008 form of cl.485.215(a) and (b). In Habib v MIAC the Court found that the language test criterion found in cl.485.215(b) should be given the same effect as that given by the High Court in Berenguel. This has been followed in Banala v MIAC [2010] FMCA 570 (Raphael FM, 4 August 2010), Mevada v MIAC [2010] FMCA 616 (Turner FM, 17 August 2010) and Nayeem v MIAC [2010] FMCA 618 (Cameron FM, 17 August 2010). As such, results of a test taken after the date of application can be used to satisfy cl.485.215(a) and (b).
The Tribunal has verified the results of the IELTS test which the applicant sat on 8 November 2008. The Tribunal accordingly finds that the applicant has achieved a score of at least 5 for each of the 4 components of an IELTS test conducted not more than 2 years before the day on which the application was lodged. The Tribunal thus finds that the applicant has vocational English as defined in r.1.15B(5). The applicant therefore satisfies cl.485.215(a).
Given the construction given to both cl.485.215(a) and (b) by the Court in Habib v MIAC, Banala v MIAC, Mevada v MIAC and Nayeem v MIAC, the alternative criterion in cl.485.215(c) that the application is accompanied by evidence that the applicant has made arrangements to undergo a language test, appears to be of little relevance. Furthermore, the criterion in cl.485.222, which appears to be enlivened only if an applicant satisfies cl.485.215(c), appears in the Tribunal’s view to be redundant, given the case law referred to above. Nevertheless, as the delegate found that the applicant did not satisfy cl.485.222, the Tribunal finds, for the sake of completeness, that the applicant also satisfies cl.485.222(a).
For the reasons given above, the Tribunal finds that, the applicant satisfies cl.485.215 and cl.485.222.
CONCLUSIONS

Given the findings made above, the Tribunal remits the matter with a direction that the applicant meets cl.485.215 and cl.485.222.
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; and
cl.485.222 of Schedule 2 to the Regulations.

Richard Derewlany
Member

作者: fushenjie2004 时间: 2011-12-31 04:45
最后的就给了: 就是12月6日拿到了485的信......那一刻我成功了.至少是个短暂的成功......

作者: lihong10 时间: 2011-12-31 05:01
辛苦的路~~

作者: RDL85 时间: 2011-12-31 07:23
漫漫移民路啊，搞了半天才拿TR，哥们你还有很久的路要走，PR下来再松气吧早上起来看到你的帖子就知道一定不容易。坚持就是胜利，也不要太关注与移民，毕竟只是一个人生的小目标。没准你定一个长远的目标，顺带就能完成它。赚钱才是王道哇。努力！！！！！

作者: nokia3000cn 时间: 2011-12-31 10:23
goodgood

作者: fushenjie2004 时间: 2011-12-31 14:53

RDL85 发表于 2011-12-31 07:23
漫漫移民路啊，搞了半天才拿TR，哥们你还有很久的路要走，PR下来再松气吧早上起来看到你的帖子就知道一定不 ...

因为有个判决是移民局撤诉。所以没有case law. 希望对有些人帮助

作者: melodyluck 时间: 2012-1-18 13:27
以后有什么签证问题，找我吧，我会帮你的。liz

作者: melodyluck 时间: 2012-1-18 13:32
你走过的路真的很辛苦，任何事情都会过去，希望你能拿到pr.有任何帮助，可以和我联系

作者: zbczbc220053 时间: 2012-1-25 20:40
真的很辛苦，
虽然我也经历五年才拿到PR，
但你比我更辛苦。
祝早日拿到PR

作者: 瞎忙啥呢 时间: 2012-2-5 12:50
真的好艰难呀！佩服你的顽强精神！good luck to you.

作者: 笑看风云 时间: 2012-2-5 21:02
不容易,祝贺你成功

作者: fushenjie2004 时间: 2012-11-8 00:30
上周去了移民局递交PR,结果突然发现他们的速度特快,就给我个空信封然后把资料一塞就和你说再见,结果到现在都没有收据..........而且没有确认信.等下周再没有消息就联系我原来的律师去问怎么回事了......

作者: lostinbrisbane 时间: 2012-11-30 08:03
祝好运

作者: 我记不住账号 时间: 2012-11-30 21:32
加油，虽然我不认识你，现实中我们也没有办法做朋友，但是我挺你

作者: melodyluck 时间: 2013-1-23 04:17
怎么了？你现在还没搞定身份吗？

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