Abu Bakar (Migration)

[2017] AATA 851

Abu Bakar (Migration) [2017] AATA 851 (23 May 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Fazli Abu Bakar

CASE NUMBER:  1607425

DIBP REFERENCE(S):  BCC2015/3721367

MEMBER:Catherine Carney-Orsborn

DATE:23 May 2017

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2017 at 11:33am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Skills assessment – IETLS test not undertaken 3 years before application date – No skills assessment

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, Part 485, cl 485.212, IMMI15/062

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 7 December 2015. 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 24 May 2016 because the applicant did not have the required English language proficiency nor was there evidence before the delegate that the applicant’s skills had been assessed as suitable for the nominated occupation.

4. The applicant appeared before the Tribunal on 16 May 2017 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s stepfather. 

5. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal 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 first 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 IMMI15/062. 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. As such the applicant must meet cl.485.212(a).

3. The application was lodged with the department on 7 December 2016.  On that application the applicant stated that he had not undertaken an English test within the last 36 months.  He further answered no to the question relating to whether he held a passport from USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate he had competent English).

4. On 12 May 2017 the applicant provided submissions from his representative and statements from the applicant and his stepfather.  Those submissions in summary state that the applicant has always complied with all his visa obligations, has family in Australia, was misinformed about the need for him to comply with the English requirements, that he was educated in the English language in Singapore and has been a diligent worker.  He states that his occupation was assessed on 7 April 2016 and he had the belief that the assessing authority would send the assessment to the Department of Immigration and Border Protection.

5. The Tribunal accepts that the applicant has studied and worked in Australia.  There is no adverse information before the Tribunal in relation to his interactions with the Department.

6. The applicant provided evidence of an IELTS test results for 29 April 2017 which show he has achieved at least 6 in all the components of the test, however it is a requirement of the relevant instrument IMMI 15/062 that the English language tests must have been undertaken within the three years before the day on which the application was made.

7. The applicant states that he was misled by his agent and told that as he was educated in English in Singapore he did not have to satisfy this criterion.  The Tribunal does however note that the application form on the Department file which he supplied lists the relevant countries and Singapore is not listed.

8. The Tribunal is sympathetic to the applicant’s plight however is bound by the regulations as set out above.   On the evidence before it the Tribunal finds that the applicant has not demonstrated he has the requisite English ability.

9. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

10. As the applicant does not meet cl.485.212(a) and therefore cannot meet the criteria for a subclass 485 visa the Tribunal will not consider the other criteria.

11. 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.

Catherine Carney-Orsborn
Member