CHUKKAPALLY (Migration)

[2018] AATA 5742

CHUKKAPALLY (Migration) [2018] AATA 5742 (6 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr VINIL CHUKKAPALLY

CASE NUMBER:  1813454

DIBP REFERENCE(S):  BCC2018/581842

MEMBER:Kate Millar

DATE:6 November 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.212 of Schedule 2 to the Regulations.

Statement made on 06 November 2018 at 4:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IELTS test results – within time requirements – decision under review remitted

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 3 February 2018. 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, and the applicant must meet the primary criteria to be granted the visa.

3. The delegate refused the visa on 2 May 2018 because the applicant did not have the required English language proficiency.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)).

6. 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).

7. The Instrument IMMI 15/02 requires, for an International English Language Test (IELTS) a minimum overall score of 6 and a minimum of 5 for each of the components of listening, reading, speaking and writing.  The applicant has provided IELTS results of an overall band score of 7.5, with each component being over 5.  The Tribunal sought and received verification of his IELTS test results.  As a result, he has IELTS resulted required by IMMI15/065. 

8. The period specified by IMMI 05/065 is the three years before the day on which the application was made.  The application was lodged on 3 February 2018.  The date on the IELTS test results is 16 February 2017, and the time requirements are met. 

9. IMMI15/062 specifies that the IELTS test must be completed in a single test sitting. 

10. Evidence that the applicant has undertaken the relevant test within the relevant time must accompany the application.  In this case, the applicant provided the date he undertook the test and the test reference number with the application, and this meets the requirement that the application is accompanied by evidence that he met language test requirements.  

11. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.212 of Schedule 2 to the Regulations.

    Kate Millar
    Member