Chakaduka (Migration)

[2018] AATA 5909

Chakaduka (Migration) [2018] AATA 5909 (24 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Takwirira Shingirai Chakaduka

CASE NUMBER:  1711171

DIBP REFERENCE(S):  BCC2017/1032104

MEMBER:Susan Trotter

DATE AND TIME OF

ORAL DECISION AND REASONS:          24 July 2018 at 2:50 pm (QLD time)

DATE OF WRITTEN RECORD:                22 July 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision under review.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – application not accompanied by required evidence – test undertaken outside of prescribed period – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 5 May 2017 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 July 2018, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant is a 30-year old citizen of Zimbabwe. He first arrived in Australia in February 2014 as the holder of a student visa and has undertaken various studies in Australia. He applied for the visa the subject of this application, known as a Subclass 485 visa, on 15 March 2017.

4. Visa Class VC contains Subclass 485. 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).

5. The delegate refused the visa on 5 May 2017 on the basis that the applicant did not have the required English language proficiency as specified by the Regulations.

6. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 25 May 2017 and appeared before the Tribunal on 24 July 2018 to give evidence and present arguments.

7. The criteria for a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations and include cl.485.212. That criterion requires one of two things to be satisfied. The application either needs to be accompanied by evidence that the applicant has undertaken a language test specified by the Minister in a legislative instrument made for the purposes of cl.485.212(a) and has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument or, alternatively, the applicant holds a passport of the type specified by the Minister in a legislative instrument made for the purposes of cl.485.212(b).

8. The relevant instrument specifying language tests, relevant periods, scores and passports is an instrument known as IMMI 15/062 and the specified test relevant to this case is the International English Language Test System, which is known as an IELTS test. There are other tests specified as well but it is the IELTS test that is of potential relevance to the applicant. The language test must have been undertaken within the three years before the day on which the visa application was made, and the minimum scores for the language test are set out in the instrument as well. As regards the alternative of holding a passport of a certain country, the passports specified are those issued by the United States of America, the United Kingdom, Canada, New Zealand or the Republic of Ireland.

9. The Tribunal notes that in the visa application, the visa applicant responded ‘no’ to a question posed in the visa application as to whether he held a passport issued by any of those countries. The question continued to alternatively enquire as to whether he had undertaken a specified English test within the three years prior to the visa application, demonstrating that he met the English language requirement. The visa applicant confirmed to the Tribunal at hearing that he did not have a passport from any of the named countries and nor had he completed a specified test in the three years prior to the date of the visa application.

10. The Tribunal notes that the visa applicant did, on 25 May 2017, provide to the Tribunal an IELTS test report dated 6 April 2017 which had been undertaken on 25 March 2017 wherein the applicant did obtain the required score. However, that test was not undertaken in the required period. The Tribunal also had regard to the applicant’s evidence at hearing and the written submissions provided to the Tribunal submitting, amongst other things, that the applicant was unrepresented at the time that he made the visa application and the visa application form did not make it clear that he was required to sit the test at least one day before the visa application.

11. The visa applicant further submitted that if there was consistency in the representation of such vital information, any possible consequent human error could be avoided. The Tribunal has taken those matters into account but as discussed with the applicant at hearing, the Tribunal has no discretion in relation to these criteria for the visa to take into account either those circumstances or his personal circumstances at present, including his family circumstances and the young age and ill health of his young baby.

12. The Tribunal is satisfied that the applicant has completed a language test as specified; however, has not satisfied that the test was undertaken within the three-year period before the date of the visa application on 15 March 2017. He, therefore, does not satisfy cl.485.212(a)(ii) and consequently does not satisfy cl.485.212(a) of Schedule 2 to the Regulations. The applicant, as already noted, confirmed at hearing that he does not hold a passport from one of the specified countries and he is the holder of a passport from Zimbabwe. He, therefore, also does not meet cl.485.212(b) and again, cl.485.212 is not satisfied on the basis of that paragraph being met.

13. The Tribunal had taken into account the applicant’s evidence and submissions and acknowledges the understandably frustrating position within which he finds himself. However, the requirements for the visa are not met and the Tribunal has no discretion in the matter. As this is the only relevant subclass in this case the decision under review, as already indicated, must be affirmed.

    DECISION

14. The Tribunal affirms the decision under review.

    Susan Trotter
    Member