Amir (Migration)

[2021] AATA 1131

Amir (Migration) [2021] AATA 1131 (20 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Zulham Amir

CASE NUMBER:  2004229

HOME AFFAIRS REFERENCE(S):  BCC2019/6910530

MEMBER:Ian Berry

DATE:20 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 20 April 2021 at 10:25am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – non-recognised certificate from home country provided to department – no response to review hearing invitation or appearance at hearing – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360, 379A(5),
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)

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 Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 29 December 2019. 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 (Cth) (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 27 February 2020 because the applicant did not have the required English language proficiency.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)).

6. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is evidence that the applicant is a citizen of the Republic of Indonesia and 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).

7. The applicant made his application for a Temporary Graduate (Post-Study Work Stream) (Class VC) (Subclass 485) visa on 29 December 2019.  In the first instance, the applicant did not support that application with evidence of his having completed an English test.  Evidence on the Departmental and Tribunal files confirmed that the applicant did and does not have a passport of a country referred to in IMMI 15/062. 

8. On 2 January 2020, the Department file indicates that the applicant sent to it a document entitled ‘Basic English Course Certificate’ a course obtained in Indonesia and dated 30 August 2014.  As the Department’s file confirms, it is not a course recognised by the Minister’s legislative instrument IMMI 15/062. 

9. There was no other evidence of the applicant having sat for and obtained a competent English level in an English course result recognised by the legislative instrument IMMI 15/062.

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

11. Based on 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.

    Nonappearance of applicant at the hearing

12. The Department’s file recorded the Department making the decision on 27 February 2020.

13. The Tribunal notes and takes cognizance of the applicant’s email address used with the Department and the Tribunal in making his application for review.  All emails from the Tribunal were with the email address stated on the applicant’s application for review.

14. On 30 March 2021, the Tribunal sent to the applicant to his only known email address the hearing invitation, advising his case had been set for hearing on 19 April 2021 at 9 AM (Western Australian Time) at 11 AM (Queensland time).  Attached to the hearing invitation or other documents informing him of the procedural matters.  The hearing invitation specifically attached to it a document ‘Response to Hearing Invitation – MR Division ’with a request that the Response be completed and returned to the Tribunal within seven days of receipt.  The applicant did not return that Response form to the Tribunal.

15. The applicant was invited under s.360 of the Migration Act 1958 (Cth) (the Act) to appear before the Tribunal on 19 April 2021. The invitation stated that if the applicant did not attend the hearing, the Tribunal may dismiss the application for review without any further consideration of the application all the information before it. The Tribunal also sent SMS reminders about the hearing five business days and one business day before the scheduled hearing. The applicant did not appear before the Tribunal on the day and at the scheduled time. Having reviewed the Tribunal file, the Tribunal is satisfied that the applicant was properly invited to a hearing in accordance with s.379A(5), and the invitation has not been returned to the sender. The Tribunal is also satisfied that two separate SMS reminders were also sent to the applicant about the hearing. No reason for the non-appearance has been given by the applicant to the Tribunal.

16. Immediately upon receiving the application for review, the Tribunal sent to the applicant a letter dated 4 March 2021 acknowledging receipt of his application.  The documents sent to the applicant there has been no notice and/or indication that the applicant had not received the Tribunal’s email.

17. Immediately before the commencement of the hearing on 19 April 2021, the Tribunal’s hearing attendant telephoned the applicant on the phone number registered with the Tribunal, on three occasions from about 9:45 AM to 11:30 AM.

    DECISION

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

    Ian Berry
    Member