Agarwal (Migration)

[2020] AATA 4759

Agarwal (Migration) [2020] AATA 4759 (24 June 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mani Agarwal

CASE NUMBER:  1927237

DIBP REFERENCE(S):  BCC2019/3966159

MEMBER:  Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 June 2020 at 2:26 pm (VIC time)

DATE OF WRITTEN RECORD:                17 August 2020

PLACE OF DECISION:  Melbourne

DECISION:  The Tribunal affirms the decision under review.

Statement made on 17 August 2020 at 4:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –English language proficiency requirement not met –no discretion to waive English requirement –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 19 September 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

1. At the hearing on 24 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

STATEMENT OF DECISION AND REASONS

1. Mr Agarwal, you travel on a passport from India. You told the Tribunal your date of birth is 23 September 1992 so you are a 27-year-old. You came to Australia initially on 20 April 2017 on a student visa and on 10 August 2019 you lodged an online application for a Subclass 485 Temporary Graduate Post-Study work visa.

1. The delegate considered your application and found that you did not meet the English language requirement and you appealed that decision to be reviewed by this Tribunal. With your review application you included a copy of the primary decision and you today told the Tribunal you had read and understood that decision which we discussed, and I read from it in some detail.

1. To be eligible for the grant of a 485 visa an applicant must satisfy a number of requirements set out in the Regulations. One of those is clause 485.212 that says that your application needs to be accompanied by evidence that you have undertaken an English language test of a kind specified by the Minister and has scored an acceptable score, or that you hold a passport from one of the nominated countries.

1. There are a number of tests specified as suitable including the International English Language Test Systems, (IELTS), which is one of the tests you provided in an attempt to provide evidence you met the English requirements. You also stated you have done a Pearson Test of English academic (PTE), which is another of the specified tests.

1. To satisfy the requirements using this method you were required to provide evidence that in a three-year period before the date of your application you had completed a test in which you achieved an overall band score in IELTS of six, but it was in a test that you had taken in the three years before the date of your application. I read from your decision record and it says:

   In the visa application the applicant answered no to the questions, “Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland, to demonstrate you have met the English language requirement, or have you undertaken an English test within the last 36 months?”

1. An initial assessment of your application was undertaken by a case officer on 19 September 2019. On 17 August 2019 you had uploaded evidence that you had undertaken an IELTS English test, number 15IN265522AGAN855A on 27 February 2016. As your application was lodged on 10 August 2019, this test had been taken more than 36 months prior to the date the application was lodged and, therefore, it is not able to be considered.

1. As I said, you have a passport from India. There is no evidence you hold a passport from the USA, UK, Canada, New Zealand or the Republic of Ireland, and so you do not satisfy 485.212(b).

1. You told the Tribunal that you have completed a Masters of Construction Management and you had a job working as an estimator in the construction industry up until the interruptions of COVID-19 when you were terminated in March this year, 2020.

1. You say at the time of lodging your application you were suffering from financial problems; you could not afford a migration agent. You say you were working at the time and did not have focus on the documents required. You are aware that you made a mistake by not providing the evidence which was required but you request one more chance.

1. The situation is that this is not a matter in which the Tribunal has discretion, Mr Agarwal.

   The English language requirement is one of the mandatory requirements that must be met at the time of lodging the 485-post study visa application.

1. As you have not provided evidence of having successfully completed an acceptable English test within the three years immediately before the date on which you lodged your application, you do not satisfy regulation 485.212(a).

1. As 485.212 is not met I find the criteria for the grant of a sub-class 485 temporary graduate visa, in the post-study work stream, are not met. It is therefore the decision of this Tribunal to affirm the decision under review. This decision is made at 2.26 pm on 24 June 2020.

DECISION

1. The Tribunal affirms the decision under review.

Tim Connellan Member