Arora (Migration)

[2018] AATA 5945

Arora (Migration) [2018] AATA 5945 (23 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankit Arora

CASE NUMBER:  1729893

DIBP REFERENCE(S):  BCC2017/3118140

MEMBER:R. Skaros

DATE:23 October 2018

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 October 2018 at 3:22pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – required English language proficiency – no English language test within 3 years before application – IELTS test after application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

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 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 29 August 2017. 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 8 November 2017 because the applicant did not have the required English language proficiency.

4. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. On 22 August 2018, the Tribunal wrote to the applicant and invited him to provide information about the English language proficiency requirements in cl.485.212. The Tribunal received a number of documents, which relevantly included an IELTS test report for a test undertaken on 9 September 2017. 

6. The applicant appeared before the Tribunal by telephone on 18 October 2018 to give evidence and present arguments.

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. The applicant indicated in the application form that he does not hold a current passport from one of the specified countries and that he had not undertaken an English language test within the last 36 months. After lodgement, the applicant provided to the Department a copy of an IELTS test report form which indicated that the applicant had undertaken the IELTS test on 9 September 2017.

10. 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. The applicant must therefore satisfy cl.485.212(a).

11. The Instrument (IMMI 15/062) prescribes that an IELTS test is specified for the purposes of cl.485.212(a), that an overall score of at least 6.0, with not less than 5.0 in each of the 4 test components, is required and that the test must have been undertaken within the 3 years before the day on which the application was made.

12. Although the applicant had achieved the specified scores in the IELTS test undertaken on 9 September 2017, these scores were not achieved in a test undertaken within the 3 years before the day on which the application was made.

13. In his submission to the Tribunal, the applicant stated that he sat the English test after applying for the visa. He stated that he had to request credit transfers from his education provider and the approval came at around the same time as his graduation and his student visa was due to expire. He stated that he contacted Immigration and was advised to lodge the application as he could upload documents when they became available. He stated that he hoped to stay in Australia to gain relevant work experience.  

14. At the hearing the Tribunal discussed with the applicant the evidence before it which indicated that he did not meet the requirements in cl.485.212. The applicant stated that he was not aware he had to undertake the test before lodging the application and received advice from Immigration that he could provide documents after lodgement.

15. The Tribunal has considered the applicant’s submissions and acknowledges his evidence about receiving advice from the Department that he could provide documents after the application is lodged. However, as explained to the applicant at the hearing, the Tribunal has no discretion in these cases. The requirements in cl.485.212 are mandatory and the Tribunal must make its decision in accordance with the legislative provisions notwithstanding any incorrect advice the applicant may have received from a Departmental officer.

16. The Tribunal finds on the evidence before it that the application was not accompanied by evidence that the applicant had undertaken a specified language test in which he has achieved, within the specified period of three years before the day on which the application was made, the score specified in the instrument. Consequently, the applicant does not satisfy the requirements in cl.485.212(a).

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.

    R. Skaros
    Member