Das (Migration)

[2019] AATA 2664

Das (Migration) [2019] AATA 2664 (1 March 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Vinod Das

CASE NUMBER:  1800456

DIBP REFERENCE(S):  BCC2017/4666286

MEMBER:  K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          1 March 2019 at 10:38 am (QLD time)

DATE OF WRITTEN RECORD:                30 May 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decision not to grant the

applicant a Skilled (Provisional) (Class VC) visa.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – completed an IELTS test – expired at the time of visa application – additional tests undertaken after visa application was made ­– decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 December 2017 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (‘the Act’).

2. At the hearing on 1 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The applicant applied for the visa on 7 December 2017. 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 (‘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.

4. The delegate refused to grant the visa on 20 December 2017 because, in their view, the applicant did not demonstrate the required English language proficiency in accordance with clause 485.212.

5. The applicant appeared before the Tribunal on 1 March 2019 to give evidence and present arguments. The Tribunal received documents from the applicant including, but not limited to, English language test results and educational qualifications. All material submitted by the applicant has been duly considered by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether the applicant satisfies clause 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 (see clause 485.212(a)); or

   ·     the applicant holds a passport of a type specified by the Minister in an instrument (see clause 485.212(b)).

7. The relevant Instrument specifying the 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, clause 485.212(b) is not met. Therefore, the applicant must meet clause 485.212(a) in order for his review to be successful.

8. During the review hearing, the applicant was invited to provide evidence in support of his application for review. When asked by the Tribunal if he had undertaken an English language test within the three years before the day on which the Subclass 485 visa application was made, the applicant indicated that he had not done so.

9. The Tribunal invited the applicant to outline what English tests he had, in fact, undertaken. The applicant advised the Tribunal that he has taken three English language tests. He advised that he completed an IELTS test on 4 September in 2014 and he accepted that that test had expired by the time that he applied for the Subclass 485 visa. He outlined that the reason for this timing was that his Student visa was expiring and he needed to submit a test

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in order to make the Subclass 485 visa application and that in his view the test had only recently expired. He also advised the Tribunal that he had undertaken an IELTS test on 9 December in 2017 and a PTE Academic test on 21 August in 2018.

1. The Tribunal raised with the applicant that the IELTS test he undertook on 4 September 2014, the IELTS test he undertook on 9 December 2017 and the PTE Academic test he undertook on 21 August 2018, were not undertaken within the three years before the day on which the Subclass 485 visa application was made and this might tend to suggest that the applicant did not meet the requirements for the visa, inviting his comment. The applicant responded by advising the Tribunal that the mistake was on his part and that he miscalculated the time for the validity of the first English language test that he had undertaken. The Tribunal invited the applicant to provide further evidence about the decision to refuse to grant him the Subclass 485 visa and he advised that he did not have any further evidence.

2. The applicant confirmed again to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing. The Tribunal has carefully considered the evidence in this matter. The Tribunal notes that the applicant applied for the Subclass 485 visa on 7 December 2017 indicating he had undertaken the required English language test in that visa application. The applicant also provided a copy of results for an IELTS English language test he undertook on 9 December 2017 and also for an IELTS test he undertook on 4 September in 2014. Additionally, he provided a copy of results for a PTE Academic English language test he undertook on 21 August 2018.

3. The Tribunal notes that all of the test results achieve a score specified in Instrument IMMI 15/062. However, no test was undertaken within the three years before the day on which the Subclass 485 visa application was made. There is, therefore, no evidence before the Tribunal suggesting that the applicant undertook a specified English language test within the three years before the day on which the Subclass 485 visa application was made and achieved the specified score in accordance with Instrument IMMI 15/062.

4. The Tribunal notes that the applicant conceded in his oral evidence that he did not undertake
   a successful English language test within the required period. The Tribunal finds that the applicant was an honest witness and it accepts the evidence that he gave during the review hearing.

5. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion even if the result is upsetting to the applicant. The Tribunal has no power to waive the temporal limitation specified at Item 4 of Instrument IMMI 15/062 with respect to the time that the English language test was undertaken.

6. Having carefully considered the evidence, the Tribunal finds that at the time the Subclass 485 visa application was made, it was not accompanied by evidence that the applicant undertook a specified English language test within the three years before the day on which the Subclass 485 visa application was made and achieved the specified score in accordance with Instrument IMMI 15/062.

7. Therefore, the Tribunal is not satisfied that the application was accompanied by evidence that satisfies the requirements of clause 485.212(a). It follows that the applicant 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.

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DECISION

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

   visa.

   K. Chapman
   Member

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