AYUB (Migration)

[2018] AATA 2493

AYUB (Migration) [2018] AATA 2493 (12 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad AYUB

CASE NUMBER:  1732705

DIBP REFERENCE(S):  BCC2017/4561920

MEMBER:Alison Mercer

DATE:12 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 12 June 2018 at 5:13pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for the applicant to have satisfactorily completed an English language test in the previous 36 months – Test successfully completed longer than 36 months prior – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 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 1 December 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 14 December 2017 because the applicant did not have the required English language proficiency. The delegate noted that the applicant stated in his online visa application form that he had undertaken an English test in the 36 months before making his visa application, but when he provided his PTE Academic English test results, they indicated that he had undertaken this test on 6 December 2017, after he made his visa application. He therefore did not satisfy cl.485.212(a).  The delegate further found that the applicant did not hold a specified passport, and thus could not satisfy cl.485.212(b). As a result, the applicant did not meet cl.485.212 as a whole.

4. The Tribunal received a review application from the applicant on 22 December 2017. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Peter Michalopoulos, as his representative and authorised recipient for correspondence.

5. On 16 March 2018, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 4 April 2018.  The invitation letter set out the English proficiency requirements that had to be met in detail.

6. The applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. He told the Tribunal that he understood that so long as he had an English test booked before he made his visa application online, that was OK and he could provide the results later on. The applicant stated that he completed his Masters of Accounting degree in mid-November 2017 and then started to prepare his subclass 485 visa application himself, without the assistance of a migration agent. He noted that this was the first time he had prepared a visa application himself. He had to lodge the subclass 485 visa application by 6 December 2017, as his student visa ceased on this date. He had an IELTS test result form from 2014 but he realised when he was about to lodge the subclass 485 visa application that it was no longer valid as it was over 3 years old. He tried to book another English test as soon as possible, but the earliest test date available was 6 December 2017 (the date on which he sat the PTE test). The applicant told the Tribunal that he was in Australia on a scholarship and applied for the subclass 485 visa because he wanted to acquire employment experience in his field of Accounting.  

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 relevant instrument specifying language tests, scores, relevant 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, and as such, cl.485.212(b) is not met. Accordingly, the applicant must meet cl.485.212(a).

10. Based on the evidence before the Tribunal, it is satisfied that:

    ·    the applicant made his subclass 485 visa application online on 1 December 2017, in which he indicated that he had sat an English test in the previous 36 months; and

    ·    the applicant sat a PTE Academic English test on 6 December 2017, in which he obtained an overall score of 71 points (with scores of 70 for listening, 71 for reading, 69 for writing and 80 for speaking).

11. Item 1 of IMMI 15/062, the relevant written instrument, specifies that a PTE Academic English test is acceptable for the purposes of cl.485.212(a)(i). Item 2 of IMMI 15/062 specifies that, for a PTE Academic English test, the required minimum overall score is 50 points, with a minimum of 36 for each of the 4 test components. The Tribunal is satisfied that the applicant’s test results exceed the required scores. 

12. However, item 3 of IMMI 15/062 specifies that this test (or any of the other specified English tests) must have been undertaken by the applicant within the 3 years before the day on which his visa application was made (that is, in the 3 year period immediately before 1 December 2017 – between 30 November 2014 and 30 November 2017). The Tribunal finds that the applicant’s PTE Academic English test was not undertaken with the specified period, as it was undertaken on 6 December 2017 (after he had made his subclass 485 visa application).

13. The Tribunal acknowledges the applicant’s explanation that he was unable to sit a specified English test until 6 December 2017 as an earlier test booking was unavailable, and that an earlier IELTS test undertaken by him was more than 3 years old at the time of his visa application.  It also acknowledges that in the PTE test that the applicant undertook, he exceeded the specified scores and demonstrated a high level of English proficiency (as also demonstrated by the fact that he successfully completed a Masters of Accounting at Kaplan Business School in Australia). It further acknowledges that the applicant is dismayed by the fact that his subclass 485 visa application has been derailed by such a seemingly technical error.

14. However, the Tribunal is required to be satisfied that the applicant meets cl.485.212(a) in the way specified in IMMI 15/062.  It has found that he did not, and cannot now do so due to the temporal limitation in item 3 of that instrument. The Tribunal has no discretion in the Act or Regulations to overlook or waive the combined requirements of cl.485.212(a) and IMMI 15/062.

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.

    Alison Mercer
    Member