Cheung (Migration)

[2023] AATA 1544

Cheung (Migration) [2023] AATA 1544 (23 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Pui Lam Cheung

REPRESENTATIVE:  Mr Aaron Wai Kwong Yeung (MARN: 0104705)

CASE NUMBER:  2213602

HOME AFFAIRS REFERENCE(S):          BCC2020/2908606

MEMBER:Namoi Dougall

DATE:23 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2023 at 11:09am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IELTS Test results from the previous 3 years – compelling circumstances – impact of the COVID-19 Pandemic – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

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 Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 31 December 2020. 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 (Cth) (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 24 August 2022 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 23 May 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages

5. The applicant was represented in relation to the review.

6. 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. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2), however, this is not relevant to the circumstances of this matter.

3. 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. As such the applicant must meet cl 485.212 (a).

4. The applicant in this case stated in the visa application that she had not undertaken an English test in the last 36 months and had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument. The Department wrote to the applicant four times from 9 August 2021 to 5 May 2022 requesting evidence that the applicant held an eligible passport or had undertaken the required English language test. The applicant did not provide the requested evidence.

5. On 14 September 2022, the applicant provided to the Tribunal a receipt for an English language test to be undertaken on 31 October 2022.

6. On 16 May 2023, the Tribunal sent the applicant a natural justice letter which referred to the Department refusing the Subclass 485 visa as the applicant had not met the requirements of reg.485.212 as the applicant has not undertaken a specified English language test and achieved the minimum results within the three years before the date on which the visa application was made. Nor did the applicant hold a specified passport. The Tribunal provided a copy of the relevant legislative instrument which set out the specified language tests and scores and the period within which the specified scores are to be achieved.

7. The Tribunal also referred to in its letter of 16 May 2023, to the receipt for the English language test booked on 31 October 2022 and stated that since the test was to be undertaken after the date of your application it cannot be relied upon to meet the requirements of reg.485.212. The Tribunal then explained that as the applicant’s Subclass 485 visa application was not accompanied by evidence that she had undertaken an English language test between 30 December 2019 to 30 December 2022 where he achieved the relevant test scores, the Tribunal may find that the applicant does not meet the requirements of reg.485.212. Further, if the Tribunal makes this finding, then the Tribunal will affirm the Department’s original decision.

8. On 23 May 2023 the applicant responded to the Tribunal’s letter of 16 May 2023 with a submission from the applicant’s representative and a copy of a PTE language test scores for a test undertaken on 22 May 2023. The representative submitted that as a COVID-19 affected applicant, the applicant requests that the Tribunal considers her compelling circumstances and remit the decision.

9. At the hearing the Tribunal went through the requirements of cl.485.212 and the contents of its letter dated 16 May 2023. The applicant confirmed that she understands the English language requirements. The applicant stated that her visa was rejected at a time when many test centres due to the COVID-19 Pandemic were closed and she was worried about the health consequences of attending at the centres. Also last year she tested positive for COVID, and she had serious consequences and took one to two months to recover. Last October she had booked a test and she provided the score to he representative, but she had not met the test score requirements. When she got the score, she asked her representative to ask for the due date to be extended and she is not sure if that was agreed. The representative did not inform her of a response from the Department in relation to the decision to refuse the visa and she was not informed of the letters sent to the representative requesting her English test results and this is why her visa was refused. She now has the score that is required and would like the Tribunal to reconsider the matter. The applicant stated that it was because her representative had lodged the application there was poor communication and she was not informed all of the details of the requirements. The representative lodged application during their discussion. The Tribunal recommended that the applicant seek advice.

10. The Tribunal again explained the requirements of cl.485.212. The applicant stated again that she did book a test and sent the representative her results but the results were not ideal, so she arranged to sit the test again. The Tribunal explained that the test results achieved after the date of the applicant’s visa applicant cannot met the English language test requirements. The applicant stated that her representative did not inform her of the details, and she was not aware the application had been made so this is why she booked the test afterwards. The Tribunal explained that the Tribunal does not have a discretion. The Tribunal again recommended that the applicant seek advice.

11. As the applicant has not undertaken a language test specified in an instrument and therefore, has not achieved, within the period specified in the instrument, the score specified the Tribunal is satisfied that the applicant does not meet the requirements of cl.485.212(20(a).

12. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212.

13. 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.

Namoi Dougall
Member