Badiya (Migration)

[2018] AATA 5354

Badiya (Migration) [2018] AATA 5354 (1 November 2018)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Vishal Badiya

CASE NUMBER:  1827626

DIBP REFERENCE(S):  BCC2018/2994512

MEMBER:Cathrine Burnett-Wake

DATE:1 November 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 01 November 2018 at 2:01pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language test – IMMI 15/062 – test undertaken after visa application – 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 9 August 2018. 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 September 2018 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal via video conference on 1 November 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. 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. Therefore, the applicant must meet cl.485.212(a).

8. On the visa application form the applicant declared that he had not undertaken an English test within the last 36 months. This fact was noted on the decision record, a copy of which was provided to the Tribunal. As the application was not accompanied by evidence of the applicant having undertaken an appropriate English test in the 3 year period ending immediately prior to the day on which the applicant lodged the delegate proceeded to refuse the application on that basis.

9. On 25 September 2018, the Tribunal received a written submission from the applicant. It outlines that the reason for refusal of his visa application was because of failing to attach an English language result. The submission goes on to explain that the reason it was not attached was because he was not sure that it was mandatory for his application, and instead he attached a supporting document he received from his university.

10. The applicant has provided evidence to the Tribunal that he has subsequently undertaken a PTE Academic English test. The test results indicate that he achieved above the minimum overall score and minimum scores for each test component. However, the applicant sat this test on 17 September 2018, more than one-month after lodging his visa application.

11. At hearing the Tribunal explained to the applicant the requirements, as set out in the relevant legislative instrument and the clause under review, are explicit that the English language test must have been undertaken within the three years before the day on which the application was made, and further, evidence of the relevant test accompanied the application. The Tribunal outlined to the applicant that it had no discretion to waive these requirements.

12. The facts of the case are not under dispute. The applicant at hearing conceded that although he now had undertaken and provided the Tribunal with evidence of his English proficiency, by way of a PTE Academic English test, he had not undergone this test prior to lodging the visa application on 9 August 2018. He acknowledged that it was a mistake on his part as he had not understood the requirements and relied upon documents from the University about completing his course in English.

13. In light of the above, the Tribunal is not satisfied that the application was accompanied by evidence that the applicant had undertaken an English language test within the three years before the day on which the application was made; therefore the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212 (a). 

14. 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

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

    Cathrine Burnett-Wake
    Member