1607829 (Migration)

[2016] AATA 4831

1607829 (Migration) [2016] AATA 4831 (23 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yurico Hiromi

CASE NUMBER:  1607829

DIBP REFERENCE(S):  BCC2016/749689

MEMBER:Mary-Ann Cooper

DATE:23 December 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 23 December 2016 at 11:11am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – Specified language tests – Successful test not undertaken within three years before application – Excellent academic achievements – No discretion

LEGISLATION

Migration Act 1958, s 65
Migration Regulation 1994, Schedule 2, cl 485.212, IMMI 15/062

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 22 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 11 May 2016 because there was no evidence that the applicant had the required English language proficiency.

4. The applicant appeared before the tribunal on 8 December 2016 to give evidence and present arguments. 

5. The applicant was represented in relation to the review by his registered migration agent who did not attend the hearing.

6. 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.

3. The specified language tests in IMMI 15/062 are the International English Language Test System (IELTS) test; Occupational English Test (OET); Test of English as a Foreign Language internet-based Test (TOEFL iBT); Pearson Test of English Academic (PTE Academic); or Cambridge English: Advanced (CAE) test. The language test must have been undertaken within the three years before the day on which the application was made (paragraph 4 of IMMI 15/062) and show that the applicant achieved the minimum scores as provided for in paragraph 3 of IMMI 15/062 (cl.485.212(a)).

4. The passports specified in IMMI 15/062 are passports of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland (cl.485.212(b)).

5. 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. As such the applicant must meet cl.485.212(a).

6. As recorded in the delegate’s decision, the applicant had declared in his visa application that he had not undertaken an English test within the previous 36 months. The delegate sent him a  request for this information and he supplied a copy of a successful PTE test undertaken on 20 April 2016. Because this test was undertaken after the visa application date, the delegate could not take it into account. Consequently the delegate determined that the applicant did not meet cl.485.212 and the visa was refused.

7. Prior to the hearing, the applicant had forwarded a copy of the 20 April 2016 tests results and a submission to the tribunal. He stated that he was unaware of the requirement to lodge English test results at the time he lodged the application and had thought that he could supply them later. Given his overall test score of 7 in previous English tests he asked that the tribunal take into account his circumstances and find that he met the criteria for the visa. 

8. At the hearing the applicant confirmed that he held a passport of Indonesia and that he had responded “No” to the question in his visa application form as to whether he held a specified passport or had undertaken an English test within the previous 36 months. He provided an IELTS test dated 6 September 2012 which demonstrated that he had the required level of English language competency at that date, which was approximately 3.5 years before the application date. The tribunal outlined the legislative requirements and the relevant instrument and allowed the applicant some further time to provide any additional evidence.  

9. Following the hearing the applicant sent another submission to the tribunal in which he described his academic achievements and experience since coming to Australia in 2012 and the fact that his English language test results demonstrated he exceeded the required score. He outlined his expenditure incurred in order to meet the visa requirements and expressed his wish to remain in Australia and to become a Primary or Pre-school teacher.

10. The tribunal notes that the applicant clearly had and has a high level of English language competency and also notes that he successfully completed his bachelor degree at Swinburne University, achieving Distinction and High Distinction scores in many of his subjects. As explained to the applicant at the hearing however, there is no discretion available to the tribunal in the circumstances of his application.

11. The tribunal therefore finds that:

• The applicant applied for this visa on 22 February 2016.

• He does not, and did not at the time, hold a current passport for the USA, UK, Canada, New Zealand or the Republic of Ireland.

• He did not undertake a specified English test and achieve the specified score within the three years before the day on which the application was made.

• There was no evidence accompanying the visa application that he held a specified passport or that he had undertaken a specified English test within the specified period.

1. On this basis the tribunal is not satisfied that the application was accompanied by evidence that the applicant held a specified passport (cl.485.212(b)) or that he had undertaken a specified English test and achieved the relevant score within the specified period (cl.485.212(a)).

2. Therefore the tribunal is not satisfied that cl.485.212(a) or (b) is met. 

CONCLUSION

1. 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.

Mary-Ann Cooper
Member