CHOI (Migration)

[2019] AATA 5905

CHOI (Migration) [2019] AATA 5905 (19 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ming Long CHOI

CASE NUMBER:  1912883

DIBP REFERENCE(S):  BCC20191164627

MEMBER:Denise Connolly

DATE:19 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 19 December 2019 at 2:30pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – English language proficiency – OETS results did not meet requirements – IELTS provided 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 a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 7 March 2019. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused the visa on 6 May 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 11 December 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Cantonese and English languages.

5. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.

9. In the present case, there is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

10. The relevant instrument specifies among other things that the specified English language test in which the applicant has achieved the specified scores must have been undertaken within the 3 years before the day on which the application was made.

11. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the visa application the applicant declared he had undertaken an Occupational English Test (OET) on 2 February 2019 and quoted a Test Reference Number of ‘200029452’. On 7 March 2019 the applicant uploaded to the Department an OET statement of results for the test undertaken on 2 February 2019 (in the specified period before the visa application was made) in which he scored a B for listening, B for reading, B for speaking and C for writing.  

12. The delegate found that, as the applicant did not provide evidence that he achieved the specified scores, in this case, B in each component of an OET test, he does not meet cl.485.212(a)(ii).

13. The applicant has provided to the Tribunal his OET results for the test undertaken on 2 February 2019. He also provided to the Tribunal his IELTS test report form for a test undertaken on 18 March 2019 (after the visa application was made) in which he scored 7.5 for listening, 7.0 for reading, 6.0 for writing, 6.5 for speaking and an overall band score of 7.0. On 23 May 2019 the applicant provided a letter from the University of Sydney confirming he had completed the requirements of a Bachelor of Applied Science (Diagnostic Radiography Degree as of 12 December 2018. On 31 October 2019 the applicant provided his OET statement of results for a test undertaken on 3 August 2019 (after the visa application was made) in which he scored a B for listening, B for reading, B for speaking and B for writing.

14. The applicant’s migration agent has written a submission in which he explains that the applicant lodged the visa application by himself and misunderstood the procedures. However he has now uploaded IELTS test results in which he scored over 5.0 in all components. He also provided evidence that he achieved Bs in an OET test. Both of those tests were undertaken before the Tribunal’s final decision. He claimed that the IELTS test results should have been issued before 7 March 2019 but the IELTS authority issued the results late. He asked that the Tribunal give special consideration in the applicant’s case.

15. At the hearing the Tribunal discussed with the applicant the requirements of the law. It explained that while the applicant has now achieved the specified scores in specified tests, in an IELTS test undertaken on 18 March 2019 and an OET undertaken on 3 August 2019, those tests were not undertaken in the specified period. The applicant indicated that he applied for the visa by himself. He made a mistake because he did not understand the law. He thought it would be easy. He now understands that he needed to sit the specified test before the visa application was made. He wants to remain in Australia to make a contribution as a radiographer. He is working in an imaging centre.

16. The Tribunal has considered the applicant’s written and oral evidence. It accepts that the applicant undertook a specified test, an OET on 2 February 2019, in the specified period. However the instrument specifies that the minimum scores required in an OET are Bs in each test component. As the applicant achieved a C for writing in this test, he did not meet the requirements set out in the instrument for the purposes of cl.485.212(a)(ii).

17. The Tribunal has considered the applicant’s IELTS test report form provided to the Tribunal indicating he undertook an IELTS test on 18 March 2019. The Tribunal has considered the representative’s submission that IELTS issued the results late. However it notes that the IELTS test was undertaken on 18 March 2019 so it does not accept that the results could have been issued before the date of visa application, 7 March 2019.Having considered the results the Tribunal is satisfied the applicant achieved the minimum specified scores in the IELTS test undertaken on 18 March 2019. However as the test was undertaken after the visa application was made, it is not satisfied it was undertaken in the specified period. Accordingly this test does not meet the requirements set out in the instrument for the purposes of cl.485.212(a)(ii).

18. The Tribunal has also considered the applicant’s OET undertaken on 3 August 2019 in which he achieved the minimum specified score, B, in each test component. However as the test was undertaken after the visa application was made, the Tribunal is not satisfied it was undertaken in the specified period. Accordingly this test does not meet the requirements set out in the instrument for the purposes of cl.485.212(a)(ii).

19. The representative has asked that the Tribunal give special consideration in this case. As it explained to the applicant at the hearing it does not have any discretion to waive the requirement that the applicant’s visa 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.

20. Based on these findings, the Tribunal is not satisfied the applicant has met the requirements of cl.485.212(a). Accordingly it is not satisfied that the application was accompanied by evidence that the applicant meets cl.485.212(a). 

21. 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

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

    Denise Connolly
    Member