da SIlva (Migration)

[2022] AATA 4076

da SIlva (Migration) [2022] AATA 4076 (18 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jose Erick da Silva

CASE NUMBER:  2202574

HOME AFFAIRS REFERENCE(S):          EGON950TGR

MEMBER:R. Skaros

DATE:18 July 2022

PLACE OF DECISION:  Sydney

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

Statement made on 18 July 2022 at 11:53am

CATCHWORDS  
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – PTE Academic test – test undertaken after visa application was lodged – no discretion – 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 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 19 August 2019. 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).

3. The visa was initially refused on 2 October 2019 because the delegate was not satisfied that the evidence provided by the applicant demonstrated that he met the Australian study requirement in the period of 6 months immediately before the application was made.

4. The applicant applied for review of that decision and provided evidence from his education provider regarding his studies in Australia. Based on that evidence, the present Tribunal remitted the matter to the Department for reconsideration with a direction that the applicant satisfied cl.485.231, which included the Australian study requirement.  

5. The delegate again refused to grant the visa on 15 February 2022 on the basis that the applicant did not satisfy the English language proficiency requirement.

6. The applicant appeared before the Tribunal on 12 July 2022 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. The applicant, who is a citizen of Brazil, indicated ‘Yes’ in response to the question on the visa application form about whether he holds a current passport from one of the specified countries (USA, UK, Canada, New Zealand or the Republic of Ireland) or whether he had undertaken an English test within the preceding 36 months that demonstrates the English language requirement.

10. 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 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).

11. The decision record indicates that on 12 October 2021 the applicant was requested to provide evidence that he had undertaken an English language test in the 36 months prior to lodgement. The applicant did not respond to the Department’s request and consequently, on 15 February 2022, the delegate proceeded to refuse the visa application.

12. On review, the applicant provided to the Tribunal a copy of a PTE Academic score report indicating that the applicant had undertaken the test on 22 October 2021, in which he achieved an overall score of 50, with the following scores for each component of the test: listening 46; reading 53; speaking 50 and writing 49.

13. The Instrument prescribes that a PTE Academic test is specified for the purposes of cl.485.212(a), that an overall score of at least 50, with at least a score of 36 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.

14. Although the applicant has achieved the specified scores in the PTE Academic test undertaken on 22 October 2021, these scores were not achieved in a test undertaken within 3 years before the day on which the application was made.

15. The Tribunal discussed the English language requirement and evidence with the applicant at the hearing. The applicant explained that he had undertaken the English language test previously but did not achieve the required scores. He said he had limited time between completing his course and his student visa ceasing, so applied for the Subclass 485 visa before achieving the required score. The applicant said he was under the impression that he could redo the test whilst waiting for review of the application.

16. The Tribunal acknowledges the reasons and explanation provided by the applicant. The Tribunal acknowledges the harshness of the provision particularly given that the applicant was able to demonstrate that he has the required English language proficiency in a test conducted after the application was lodged. However, as explained to the applicant at the hearing, cl.485.212 is a mandatory requirement and the Tribunal has no discretion in this matter and must make its decision in accordance with the requirements in that provision.

17. The Tribunal finds on the evidence before it 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).

18. 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

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

    R. Skaros
    Senior Member