Bhutani (Migration)

[2019] AATA 6040

Bhutani (Migration) [2019] AATA 6040 (26 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Tanmay Bhutani

CASE NUMBER:  1913869

DIBP REFERENCE(S):  BCC2019/1286670

MEMBER:Warren Stooke AM

DATE:26 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 26 November 2019 at 9:34am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – English language proficiency – did not provide PTE within time frame – Ministerial Reference requested – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 65, 351
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 13 March 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 (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 to grant the visa on 21 May 2019 on the basis that the applicant did not satisfy cl.485.212 of Schedule 2 to the Regulations because at the time of application, the applicant did not provide evidence of having completed an English language capability test.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant the visa was because he did not have a valid English PTE before lodgement.

6. The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.

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 of the Register of Instruments - Skilled visas. 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. As such the applicant must meet cl.485.212(a).

10. The applicant confirmed in evidence that he accepts he completed a PTE English language test on 19 March 2019, (after having applied to undertake the test of 13 March 2019), which was subsequent to the date of application for a Temporary Graduate (Class VC) (Post Study Work stream) subclass 485 visa.

11. The applicant gave evidence that he tried to book on 7 March 2019 (in India) but was advised that they had closed dates until an available date of 13 March 2019.

12. The Tribunal asked the applicant if he accepts that he undertook the PTE test on 19 March 2019 and he responded: “But PTE would not allow earlier date”.

13. The applicant informed the Tribunal that he had applied for a Student visa on 22 October 2019 and that he did not have any application to secure a TRA.

14. The applicant stated that he has a Bachelor of Business in Tourism and Hospitality from La Trobe University and that he completed the course in December 2018.

15. The applicant submitted references from two people, including his aunt and his employer, which whilst supportive to the applicant do not assist in determining the matter of compliance with the regulations concerning English proficiency provided in cl.485.212(a).

16. 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.

17. The Tribunal is not satisfied the applicant has undertaken a language test specified in the instrument; and or has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)).

18. Accordingly, cl.485.212(a) is not met.

19. On the basis of the above findings, the applicant 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.

    Ministerial Reference

20. The representative for the applicant requested that the Tribunal give consideration to a Ministerial Reference pursuant to s.351, which gives the Minister discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) but has decided not to refer the matter. The Tribunal notes that the applicant can still make a request directly to the Minister.

    DECISION

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

    Warren Stooke AM
    Member