Dao (Migration)

[2022] AATA 2403

Dao (Migration) [2022] AATA 2403 (11 July 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Ngoc Minh Dao

CASE NUMBER:        2111259

HOME AFFAIRS REFERENCE(S):          BCC2019/3610287

MEMBER:Wan Shum

DATE:11 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 11 July 2022 at 12:54pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – English language proficiency – test result taken within 3 years before application made does not meet requirements – test result taken after application made meets requirements – previous application in graduate work stream refused and review remitted on other grounds – consent to decision without hearing – decision under review affirmed

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

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 20 July 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). 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 9 August 2021 because the applicant did not have the required English language proficiency.

4. On 3 June 2022 the Tribunal wrote to the applicant advising that it had considered all the material before it relating to her application, but it was unable to make a favourable decision on that information alone. The Tribunal invited the applicant to give oral evidence and present arguments at a hearing on 22 June 2022 at 10 am. On 9 June 2022, the applicant advised the Tribunal that she did not wish to give oral evidence and consented to the Tribunal proceeding to make a decision on the review without taking any further action to allow or enable her to appear before it. This matter has therefore been determined on the evidence available to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. This the second time the applicant has been before the Tribunal in respect of the same Subclass 485 visa application. The first time, the visa had been refused because the applicant did not meet one of the requirements in the Graduate Work stream, that the application be accompanied by evidence that she had applied for a skills assessment. However, on review, it was submitted that she had intended to make the application in the Post Study Work stream, which is why she had not applied for a skills assessment, and further that she met all the requirements for the visa in that stream including the English language requirements and presented a copy of a test taken in August 2019. Having considered the information presented, in those circumstances the Tribunal accepted that she had made an inadvertent error when selecting the streams and the application was remitted for reconsideration under the Post Study Work stream.

7. The issue on review this time 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. But in response to the Department’s request for evidence of English language test results, the applicant provided the results of a Pearson PTE Academic test taken on 8 July 2019. The results reflect that the applicant achieved an overall score of 38 and the following scores in each component: Listening - 31; Reading - 48; Speaking - 36; Writing - 38.

10. While that test was taken in the three years prior to the day before lodgement of her visa application, the applicant did not achieve the minimum scores specified by the Minister of a minimum overall score of 50, and a minimum score each of 36 for listening, reading, speaking and writing.

11. It appears that the PTE test forwarded with the previous application for review was for a test taken on 28 August 2019. While the applicant had achieved a minimum overall score of 50 and a minimum score of 36 in each of the components of listening, reading, speaking and writing, that test was taken after the visa application was made. Therefore, it was not taken in the three years prior to the day the application was made. Despite her claims to the contrary, it has become apparent that the applicant did not meet the English language requirements as there is no evidence that the applicant achieved the minimum scores in a test taken in the relevant period, and she holds a Vietnamese passport which is not an eligible passport specified by the Minister.

12. Consequently, the application was not accompanied by evidence that meets either cl 485.212(a) or (b) and the applicant does not meet the requirements of cl 485.212 of Schedule 2 to the Regulations.

13. As noted above, the applicant had previously been refused the Subclass 485 visa in the Graduate Work stream as she had not applied for a skills assessment when the application was made. Given the above findings, the applicant also does not satisfy the criteria for the grant of a Subclass 485 visa in the Post Study Work stream. As this is the only relevant subclass in this case, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member