BHASKAR (Migration)

[2018] AATA 5349

BHASKAR (Migration) [2018] AATA 5349 (31 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bhaskar

CASE NUMBER:  1815082

DIBP REFERENCE(S):  BCC2018/511801

MEMBER:Katie Malyon

DATE:31 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 31 October 2018 at 1:02 pm

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, Indian national Mr Bhaskar, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Bhaskar applied for the visa on 31 January 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.  

3. The delegate refused the visa on 14 May 2018 because, although Mr Bhaskar confirmed in his Subclass 485 visa application that he had undertaken a language test specified by the Minister within the 3 years prior to lodgement of his application, he did not provide the results to the Department when requested to do so.  A copy of the delegate’s decision was provided to the Tribunal.

4. Mr Bhaskar appeared before the Tribunal on 19 October 2018 to give evidence and present arguments.  He was represented in relation to the review by his registered migration agent, who did not attend the hearing. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether Mr Bhaskar satisfies cl.485.212 of the Regulations which requires that his visa application was accompanied by evidence that, either, he:

   ·has undertaken a language test specified by the Minister in a legislative instrument and has achieved, within the period specified, at least the minimum overall test score and the minimum required scores for each of the 4 test components (cl.485.212(a)); or,

   ·holds a passport of a type specified by the Minister in the instrument (cl.485.212(b)).

7. The relevant instrument specifying language tests, scores, the relevant period and passport types acceptable is IMMI 15/062.  

8. In the present case, documentation in the Department’s file indicates that Mr Bhaskar is a national of India. There is no evidence that he has held a passport of a type specified in IMMI 15/062, that is, a passport from the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland. As such, cl.485.212(b) of Schedule 2 to the Regulations is not met. Therefore, Mr Bhaskar must meet cl.485.212(a) of Schedule 2 to the Regulations.

9. Clause 485.212(a) of Schedule 2 to the Regulations and IMMI 15/062 require an applicant to accompany their visa application with evidence that they have undertaken one of five English language tests and achieved at least the specified scores within the 3 years before the day on which their visa application was made.  IMMI 15/062 specifies the following

   minimum required scores for each of the test components and the overall test score:

   
   
   

English test	Minimum overall score	Total overall score	Minimum scores for English test components
			Listening	Reading	Speaking	Writing
IELTS	6	-	5	5	5	5
OET	B	-	B	B	B	B
TOEFL iBT	-	64	4	4	14	14
PTE Academic	50	-	36	36	36	36
Cambridge English: Advanced (CAE) (taken on or after 1 January 2015)	169	-	154	154	154	154

1. Review of the Department’s file confirms that, in response to the question on the first page of his Subclass 485 online application form in relation to meeting English language requirements, Mr Bhaskar responded ‘Yes’ to the question:

   Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement? 

2. Further, in response to the specific question on the penultimate page of his Subclass 485 visa application as to whether he had undertaken an English language test within the last 3 years, the type, location and date of his test, Mr Bhaskar stated he had undertaken a PTE Academic test on 30 January 2018 (that is, the day before he applied for his Subclass 485 visa) and provided his test reference number. 

3. As noted in the delegate’s decision, the Department wrote to Mr Bhaskar on 24 February 2018 requesting he provide evidence of meeting the English language requirement.  Mr Bhaskar responded on 22 March 2018 requesting an extension of 2 - 3 weeks on the basis that he had lost the soft copy of his PTE scorecard and has tried, unsuccessfully, to download it from the PTE portal.  He added he also tried to reset his password on the PTE website but has forgotten his password and efforts to contact PTE Customer Support to retrieve his scorecard have, as a result, been protracted.  The delegate waited for another 2 months but, when no response was received from Mr Bhaskar, the delegate proceeded to refuse the visa application.

4. On 17 August 2018, the Tribunal wrote to Mr Bhaskar pursuant to s.359(2) of the Act inviting him to provide evidence that his Subclass 485 visa application was accompanied by evidence that he met the English language requirements at the time of his visa application.

   Documentation lodged prior to the hearing

5. In his response to the Tribunal’s s.359(2) letter, Mr Bhaskar provided the results of a PTE Academic test undertaken 25 May 2018 (that is, 4 months after he applied for his Subclass 485 visa) in which he scored 47 for Listening, 56 for Reading, 58 for Writing, 39 for Speaking with an Overall Band Score of 51.  These results confirm Mr Bhaskar’s English language skills exceed the minimum standard of a PTE Academic test as set out in IMMI 15/062: however, the test was undertaken some 4 months after lodgement of his visa application. 

   Hearing

6. After outlining the law, the Tribunal observed that, based on information in the Department’s file, it was evident that Mr Bhaskar’s Subclass 485 visa application was not accompanied by evidence that he meets cl.485.212(a) of Schedule 2 to the Regulations. The Tribunal also explained to Mr Bhaskar that it has no discretion and must apply the law. He indicated his acceptance of the Tribunal’s position in this regard.

7. In his oral evidence, Mr Bhaskar told the Tribunal that English was the language of instruction when he studied both at high school and his Bachelor degree in Hyderabad, India.  He explained that in the PTE Academic test that he undertook on 30 January 2018 (details of which he provided in his visa application) he only scored 45 overall.  He expressed frustration that he had managed to secure all the other documentation necessary for his Subclass 485 visa following completion of his Master of Technology (Software Engineering) at Federation University but for the favourable results of an English test.  Mr Bhaskar added that, at the time, he was also coping with the loss of his uncle who died following a snake bite on the family farm in India and, further, he completed the application form without the benefit of any professional advice.

   Consideration of evidence

8. On the basis of information in the Department’s file and as accepted by Mr Bhaskar, the Tribunal finds that he does not meet either cl.485.212(a) or cl.485.212(b) of Schedule 2 to the Regulations. In the circumstances, Mr Bhaskar 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 must be affirmed.

9. The Tribunal observes that it is open to Mr Bhaskar and his representative to make a request to the Minister pursuant to s.351 of the Act. This section provides a non-compellable, personal power for the Minister to intervene in an applicant’s case to grant a visa where the person has been the subject of an unsuccessful review application. Guidelines for cases which the Minister is likely to consider are set out on the Department’s website: The Tribunal does not have sufficient information before it to be satisfied that this case involves unique or compelling circumstances such that it would be appropriate for the Minister to intervene. Nonetheless, it remains open to Mr Bhaskar and his representative to make such a case to the Minister directly if they believe it is warranted.

   DECISION

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

    Katie Malyon
    Member