Bushera (Migration)

[2017] AATA 1863

Bushera (Migration) [2017] AATA 1863 (3 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Debbie Bushera

CASE NUMBER:  1703622

DIBP REFERENCE(S):  BCC2016/4283015

MEMBER:R. Skaros

DATE:3 October 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 October 2017 at 4:13pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – No discretion to waive the requirements

LEGISLATION

Migration Act 1958, s 65,
Migration Regulations 1994, cl.485.212, Schedule 2

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 19 December 2016. 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 1 March 2017 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 13 September 2017 by telephone to give evidence and present arguments. 

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)).

2. In the visa application it was indicated that the applicant does not hold a current passport from one of the specified countries and that she had not undertaken an English test within the last 36 months that demonstrates the English language requirement. On this basis the delegate proceeded to refuse the application.

3. 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).

4. On review, the applicant provided submissions and supporting documents which relevantly included IELTS test reports which indicated that the applicant had undertaken IELTS tests on 11 February 2017 and 25 March 2017 in which she achieved an overall score of at least 6.0, with not less than 5.0 in each of the 4 test components.

5. At the hearing the Tribunal discussed with the applicant the requirements in cl.485.212(a) and the evidence before it which indicates that she had not undertaken the test in the specified period of three years before the application. In response, the applicant stated that when she came to Australia to do the masters course the university waived the English language requirement. She indicated in the application form that her main language is English and provided documents of having completed an English for academic purposes course before commencing her main studies in Australia. The applicant stated that she did sit for the IELTS test because according to the application she can submit other documents later. The Tribunal explained to the applicant that the evidence she provided with the application does not meet the evidentiary requirement set out in the regulations and that it had no discretion to waive the requirements. The applicant stated that it was a common human mistake and that there was no contact number or email where she could make enquiries about the requirements. She thought because her main language is English that she would be exempt from the requirement.

6. The Tribunal has considered the applicant’s submissions however it has no discretion in these matters. The requirements in cl.485.212 are mandatory and the Tribunal must make its decision in accordance with the legislative provisions.

7. The Instrument 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.

8. Although the applicant had achieved the specified scores in the IELTS tests she had undertaken, unfortunately, those tests were not undertaken until after the visa application had been lodged. Accordingly, the score specified was not achieved in a test undertaken within 3 years before the day on which the application was made.

9. The Tribunal finds on the evidence that the application was not accompanied by evidence that the applicant had undertaken the specified language test within the specified period of three years before the day on which the application was made. Consequently, the applicant does not satisfy the requirement in cl.485.212(a).

10. 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

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

R. Skaros
Member