Aleksic (Migration)

[2019] AATA 6388

Aleksic (Migration) [2019] AATA 6388 (4 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Milena Aleksic

CASE NUMBER:  1908385

DIBP REFERENCE(S):  BCC2018/6221755

MEMBER:Denise Connolly

DATE:4 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2019 at 9:56am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – non-appearance before the Tribunal – test undertaken outside of prescribed period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 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 17 January 2019. 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 primary criteria must be satisfied by the applicant.

3. The delegate refused the visa on 18 March 2019 because the applicant had not met the English language requirements. 

4. The applicant was represented in relation to the review by her registered migration agent.

5. The applicant was invited to appear before the Tribunal on 3 December 2019 to give evidence and present arguments. In response to the hearing invitation the applicant’s representative provided to the Tribunal an International English Language Testing System (IELTS) test report form for a test undertaken on 23 March 2019 and a submission that as she now meets the English language requirements the hearing can be cancelled. On 15 November 2019 the representative contacted the Tribunal to enquire as to whether the Tribunal had made its decision. He was advised that a decision had not been made and the hearing would proceed as scheduled unless he was informed otherwise. The representative sent a response to the hearing invitation advising that the applicant would be attending the hearing. However the applicant did not attend. After the scheduled hearing time the representative contacted the Tribunal and said that if the applicant had not arrived the Tribunal could make the decision on the papers.

6. The Tribunal is satisfied that on 24 October 2019 the applicant was invited to give oral evidence and present arguments at a hearing on 3 December 2019. The invitation was sent to the authorised recipient using the email address provided to the Tribunal for correspondence. The representative confirmed receipt of the invitation when he responded and advised the applicant would be attending the hearing.  However the applicant did not attend the hearing.  As the representative has now requested the decision be made on the papers the Tribunal will proceed to make its decision without taking further action to allow or enable the applicant to appear before it.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. In the present case, there is no evidence that the applicant holds a passport of a type specified, and so cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

10. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. It specifies among other things that the specified English language test must have been undertaken within the 3 years before the day on which the application was made.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the visa application the applicant answered ‘No’ to the question ‘Have you undertaken an English test within the last 36 months?’.  On 17 January 2019 the applicant uploaded an IELTS test report form for a test undertaken on 25 May 2013 (more than 3 years before the visa application was made) in which she scored 6 for listening, 6 for reading, 6 for writing, 6 for speaking and an overall band score of 6.

12. The delegate found that the applicant did not satisfy cl.485.212(a)(ii) as she undertook her English language test more than 3 years prior to the day of lodgement.

13. The applicant has now provided to the Tribunal her IELTS test report form for a test undertaken on 23 March 2019 (after the visa application was made) in which she scored 6.5 for listening, 8.5 for reading, 5.5 for writing, 9 for speaking and an overall band score of 7.5.

14. The Tribunal finds that while the applicant achieved the specified score in a specified test, in the IELTS test undertaken on 25 May 2013, it was not undertaken within the 3 years before the day on which the application was made. Therefore it does not meet the requirements of cl.485.212(a).

15. The Tribunal accepts that the applicant achieved the specified score in the IELTS test undertaken on 23 March 2019. However as this test was undertaken after the day the visa application was made, it was not undertaken within the 3 years before the day on which the application was made and therefore does not meet the requirements of cl.485.212(a).

16. Accordingly the Tribunal is not satisfied the applicant has demonstrated that her visa application was accompanied by evidence that she meets the requirements of cl.485.212(a) or cl.485.212(b).

17. 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

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

    Denise Connolly
    Member