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11#
发表于 2011-5-20 14:30:34
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来自： INNA
很多同学不厌其烦的问如果没有雅思成绩是否可以递交PR申请,大家可以参考 2010年4月的一个很经典的案例 Berenguel VS Immi agdency.
案件的大概描述:
Mr Berenguel, a Brazilian hoping to stay on as a skilled migrant after completing his studies, was blocked by a ruling that must have puzzled, even outraged him.
Nothing unusual -- except that Mr Berenguel went straight to the highest court in the land.
And the High Court sided with him last month against the "plain unfairness and absurdity" of the Department of Immigration in denying him a visa.
In April 2008, Mr Berenguel applied for his visa as a skilled migrant.
Under the rules, proof of his good English had to come from "a test conducted not more
than two years before" the visa application.
In February 2008, he had tried to book an English exam. These are much in demand and Mr Berenguel could not get a date before May 2008, the month following his application.
He took the test, did well and waited for a verdict from the Department of Immigration.
In December 2008, an official refused his visa application.
Mr Berenguel's English score did not come from a "a test conducted not more than two years before" his visa application.
The argument put to the High Court was that the rules left officials with no choice. They could not take into account a test score achieved after a visa application had reached the in-tray.
But the High Court said the rules simply meant Mr Berenguel had to show "recent competency" in English.
Verdict for Mr Berenguel; costs for the taxpayer to pick up
移民局对独立移民的语言要求:
http://www.immi.gov.au/skilled/g ... ibility-english.htm
特别注意:You must demonstrate that you meet the English language threshold. This means that you must provide evidence of your English language ability before the department makes a decision on your application.
举例一些会出现的情况:
Example 1;
Bill has completed his two year Advanced Diploma last year in Hospitality and obtained his 485 visa using the old 5.0 IELTS on each band (Vocational) rule which Cooks were able to use. However he now has 12 months work experience as a Cook but is unable to reach the new minimum level of 6.0 on each DIAC says he needs.
This new High Court ruling would allow Bill to lodge his permanent residency. While waiting for a case officer to be allocated by DIAC he could obtain the 6.0 on each and provide it to them. Currently there is about a two year waiting period for Cooks who have applied for permanent residence to be allocated a case officer.
Even if Bill is given a case officer and he still does not obtain the 6.0 by then, DIAC would reject his file. However he would then be able to lodge an appeal to the Migration Review Tribunal (MRT) and provide the 6.0 later at his hearing. Currently it takes about 12 months to get to a MRT hearing.
All of this means Bill has a significant amount of time to provide his 6.0 he needs so he can reach the pass mark for his permanent residency.
Example 2;
Jean has finished her 2 year Masters of Accounting at an Australian university. Her student visa is about to run out in one month but she has not been able to obtain the 6.0 IELTS result as DIAC indicates she needs.
Since Jean has a relative to sponsor her she only needs 100 points to reach the pass mark but she thinks she cannot apply for her 886 visa without the 6.0 on each band.
This High Court case allows Jean to lodge the 886 visa with her old IELTS result. Jean would then have to concentrate on her IELTS so as to provide the 6.0 on each when she is allocated a case officer. If Jean is unable still to reach this result she would have her application rejected but she too as in the example above could apply for a review at the MRT.
Example 3;
John has finished his Bachelor of engineering course. He has all the documents he requires to lodge his PR application but has not done the IELTS test yet. He has a sister who is a permanent resident. His student visa is due to expire in two weeks and he cannot book in for an IELTS test until June. What can he do?
John should lodge his PR application now anyway. DIAC must allow him to use the result of IELTS test that he is going to do in June.
最后是极端的,就是当CO在审理到申请人case的时候,申请人实在没有能力达到移民要求的分数(譬如4个7),仍然可以通过其他渠道解决:
Example 4;
Jim has just completed his two year Advanced Diploma of Hospitality. Fortunately he obtained his TRA result last year before the Job ready Program was introduced on the 1.1.10 so he can use this assessment for the permanent residency 885 and 886 visas. He is aware that the new Skilled Occupation List is going to change soon and this may mean that he may not be able to lodge his visa if Cook comes off this list.
He needs to 7.0 on each to reach the pass mark but only has 6.5 overall. He can use this result to lodge his application anyway and then concentrate on improving his IELTS score before a case officer is allocated.
If Jim has trouble of reaching 7 when he gets a case officer then he would be rejected for not reaching the pass mark but he can review this to the MRT and then present a better IELTS score to them later to reach it.
Example 5;
Jean has completed her masters of Accounting in March 2010. She is aware that perhaps in July this year the SOL may change and she may not be able to apply for permanent residency in the future. She was planning to do the professional year of study but she needs to complete that before she can claim the points and that will not be possible before the new SOL starts.
Jean has the option then to lodge her PR on the basis that she can improve her IELTS result later to obtain the points she needs.
Example 6;
Sue has completed her Masters in IT 2 years ago and is now on the 485 visa. She has been trying hard for IELTS 7.0 on each to teach the pass mark but is still missing out on one section. Her 485 visa will expire in May this year. What can she do?
The best option for Sue is to lodge her PR application and then keep trying for the IELTS test. She also needs to lodge while her skill assessment from the ACS is still valid for she knows to get another one she will need to study again or have 4 years work experience.
Sue will be issued a bridging visa for the PR application and she can continue to work full time whilst still trying for the IELTS. At the going rate of application progress she may have about 3 years to get the 7 on each which is more than possible for her.
Warning on Work Experience and Professional Year Courses
Students must be aware that if you lodge your PR applications you cannot add points later by gaining the 12 months work experience in Australia or by completing a professional year course. In both of these examples the criterion must be met before you lodge not after you lodge.
所有的case都是来源于www.australiavisa.com/english/pd ... TS%20you%20need.pdf
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