1606341 (Migration)

[2016] AATA 4665

1606341 (Migration) [2016] AATA 4665 (24 November 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Derin Kolattukudy Davis

CASE NUMBER:  1606341

DIBP REFERENCE(S):  BCC2016/621871

MEMBER:Alison Mercer

DATE:24 November 2016

PLACE OF DECISION:  Melbourne

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

Statement made on 24 November 2016 at 4:12pm

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 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 for the visa on 12 February 2016. Visa Class VC contains subclass 485. (For visa applications made before 1 July 2013, there is also a subclass 487; however, that subclass is not relevant to the present matter.) The criteria for the grant of a subclass 485 visa are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations). The primary criteria must be satisfied by at least one applicant. Other members of the family unit, if any, who are applicants for the visa need satisfy only the secondary criteria.

3. The delegate refused the visa on 18 April 2016 because the applicant did not have the required English language proficiency.  The delegate found that the applicant had provided a Pearson Test of Academic English test report form dated 17 February 2016, but that this was not undertaken in the 3 years prior to making his visa application, as required by the relevant legislation. 

4. The Tribunal received a review application from the applicant on 5 May 2016, which was accompanied by a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 22 November 2016 to give evidence and present arguments.  He told the Tribunal that he prepared his subclass 485 visa application himself and did not realise that he had to have undertaken a specified English test prior to lodging it.  The applicant said that he was not arguing that the law applied by the delegate was incorrect, but said that his experience of completing the online visa application did not make it sufficiently clear that he had to have undertaken an English test prior to lodgment.  He noted, for instance, that the online application form allowed him to continue to complete and lodge the form after having answered ‘no’ to the question about whether he had undertaken a specified English test in the last 36 months, even though the application could not succeed if this requirement was not met.  In addition, the applicant noted that the form was worded to suggest that various information and documents would be requested, and could be supplied, after lodgment.  The applicant told the Tribunal that if he had known how stringent the English requirement was, he could have applied for the visa after having done the PTE test, as his student visa had sufficient validity to have enabled him to do this.  He applied for the subclass 485 visa when he did because he understood that he could not get a HAP ID (required in order to book a medical assessment) until he had lodged the visa application (and also because he understood he could do the English test after he lodged the visa application).  He noted that he did the PTE test 5 days after his visa lodgment, and obtained scores in excess of those required.

6. The applicant confirmed that he had completed a Bachelor of Commerce (Entrepreneurship and Innovation) at Swinburne University in Melbourne, and was considering whether to undertake a Masters degree in Australia.  That was partly why he had applied for a subclass 485 visa, in order to have some further time in Australia to decide.  The applicant acknowledged that he could apply for another student visa offshore, but noted that this was a much more involved, expensive and time-consuming process than applying for another student visa while still in Australia.  He was also concerned that a visa refusal might make it more difficult for him to obtain another Australian visa, or visas from other countries in future.

7. The applicant said the fact that he had passed the relevant English test to be admitted to tertiary education in Australia indicated that he did have the required level of English proficiency for the subclass 485 visa, as did his post-application PTE test results.  He expressed dismay that the English proficiency requirement for the subclass 485 visa was so strict that these factors could not be given any weight, but said that he had consulted a migration agent and accepted that cl.485.212 was very strict.  The applicant expressed the view that the Department should amend the subclass 485 online visa application process to make it clearer to unrepresented applicants that it was mandatory to have undertaken a specified English test in the 3 years before making the application, and in particular, to amend the online application process so that it prevented applicants who answered ‘no’ to the question of whether they had done an English test in the last 36 months from proceeding with their application.  This would prevent others in similar circumstances to his from wasting considerable time and money in lodging what would ultimately be a futile application.  The applicant said that he had wasted a considerable amount of time before his visa was refused and then there was additional time before it reached a Tribunal hearing.

8. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.485.212 which requires that the application was accompanied by evidence that:

   ·the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).

2. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).

3. IMMI 15/062 prescribes that a PTE Academic test is specified for the purposes of cl.485.212(a), that an overall score of 50 (with not less than 36 in each of the 4 test components) is required, and that the test must have been undertaken within the 3 years before the day on which the application was made.

4. The Tribunal finds, based on the PTE Academic test form provided by the applicant, that he obtained an overall score of 77 (with scores of over 36 in each of the 4 test components) and that he undertook this test on 17 February 2016.  As this was after his visa application, and as discussed with him at the hearing, this does not satisfy the requirement in IMMI 15/062 to have been undertaken within the 3 years before the day on which the application was made.  Accordingly, the applicant cannot satisfy cl.485.212(b) and thus cannot meet cl.485.212 as a whole.  As further discussed with the applicant, the criteria for the subclass 485 visa confer no discretion on decision-makers (including the Tribunal on review) to waive or overlook cl.485.212, despite the fact that the applicant has demonstrated shortly after lodging his visa application that he met the required standard of English proficiency.

5. The Tribunal considers that there is merit in the applicant’s suggestion that the Department’s online application process for the subclass 485 visa be amended to prevent applicants from being able to continue to lodge an application in circumstances where they answer ‘no’ to the question of whether they have done an English test in the previous 36 months, but notes that this is a matter for the Department.

6. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a subclass 485 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.

DECISION

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

Alison Mercer
Member