Agarwal (Migration)

[2020] AATA 3291

Agarwal (Migration) [2020] AATA 3291 (18 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Probin Agarwal

CASE NUMBER:  2006260

DIBP REFERENCE(S):  BCC2020/189061

MEMBER:Jennifer Cripps Watts

DATE:18 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 18 June 2020 at 4:14pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – English test was not undertaken within the prescribed period – 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

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 (the delegate) 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 27 January 2020. Visa Class VC contains Subclass 485. 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 23 March 2020 because they were not satisfied the applicant met the requirements of cl.485.212 of Schedule 2 to the Regulations. Essentially this was because the visa application was not accompanied by evidence that the applicant had undertaken a specified English language test within the three years before the day on which the application was made. The applicant lodged a review application and provided the Tribunal with a copy of the delegate’s decision.

4. The applicant attended the Tribunal hearing by phone on 18 June 2020 to give evidence and present arguments.  At the beginning of the hearing the applicant was informed that the Tribunal hearing was being conducted by phone, and not in person, due to COVID-19 restrictions and that most other courts and tribunals were doing the same.  The Tribunal confirmed and is satisfied that phone communication was clear and uninterrupted throughout the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The Tribunal has had regard to documentary and oral evidence material to the issue on the review in making a decision.

7. The issue in the present case, which is the same determinative issue on which the visa was refused, is whether the applicant satisfies cl.485.212 which requires:

   485.212 

   The application was accompanied by evidence that:

   (a)  the applicant:

   (i)  has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii)  has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

8. The relevant instrument specifying language tests, scores, relevant time 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 in the relevant instrument; cl.485.212(b) is not met.  Therefore, the applicant must meet cl.485.212(a).

9. In summary and relevant in this case, the visa application must have been accompanied by evidence that the applicant has undertaken an English language test, where he achieved the minimum scores, within the three years before the day the visa application was lodged, as specified in the relevant instrument.  The applicant was reminded of this at the hearing and indicated he understood.

10. The applicant provided the Tribunal with an IELTS test, which is one of the language tests specified in IMMI 15/062, indicating he achieved above minimum specified scores.  The visa application was lodged on 27 January 2020.  The IELTS test was undertaken by the applicant on 22 February 2020. 

11. It was noted by the Tribunal that the applicant had indicated in his visa application that he had taken an English language test in the ’36 months’ prior to lodging the application and was asked at the Tribunal hearing whether this was correct.  The applicant said the most recent English test he had at the time he lodged the online visa application was dated 13 August 2016.

12. The applicant explained, both in his written statement provided to the Tribunal on 10 June 2020 and in his oral evidence at the hearing, the reasons why he took the language test after the visa application was lodged and not before.  In summary, he said he suffered extreme depression brought about by the breakdown of a 10 year relationship, in early January 2020, and that this caused him to miss an IELTS test he had booked in mid-January. 

13. The applicant said at the hearing that he understood he must meet the English language criteria as required by cl.485.212. He requested that the Tribunal consider his personal situation in January 2020 in making a decision on the review. He was told that the Tribunal has no discretion to waive the mandatory language requirements in cl.485.212 of Schedule 2 to the Regulations.

14. For the reasons given, the Tribunal is not satisfied that the applicant’s Subclass 485 visa application lodged on 27 January 2020 was accompanied by evidence that meets cl.485.212(a). 

15. 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

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

    Jennifer Cripps Watts
    Member