De Abrew (Migration)

[2018] AATA 1101

De Abrew (Migration) [2018] AATA 1101 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Kaluhath Iyan Ganesha De Abrew
Mrs Manuri Punsara Palliyaguru De Abrew

CASE NUMBER:  1713087

DIBP REFERENCE(S):  BCC2017/1540115

MEMBER:Susan Trotter

DATE:16 March 2018

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 16 March 2018 at 4:32pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Recent study requirement – Course completed more than 6 months from application date

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cls 485.212, 485.311

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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 28 April 2017. The completed application form indicates that the relevant subclass in this case is Subclass 485 (Temporary Graduate) (Graduate Work), the criteria for which 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.

3. The delegate refused the visas on 14 June 2017 on the basis that the primary visa applicant did had not satisfied the English language ability requirement for the visa and because the secondary visa applicant was not a member of the family unit of a person who held a Subclass 485 visa having satisfied the primary criteria for the visa.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 20 June 2017. A copy of the delegate’s decision was provided with the application.

5. The primary visa applicant appeared before the Tribunal on 12 March 2018 to give evidence and present arguments.

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

ISSUES

1. 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).

2. One of the primary criteria for grant of a Subclass 485 visa is set out in cl.485.212 which provides as follows:

485.212

The application was accompanied by evidence that:

(a)  the applicant:

(i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

(ii)has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

(b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

1. The relevant instrument specifying language tests, relevant periods, scores and passports is IMMI 15/062, which includes as follows:

(a)  The specified tests are an International English Language Test System (IELTS), a Test of English as a Foreign Language internet-based Test (TOEFL iBT), a Pearson Test of English Academic (PTE Academic), a Cambridge English: Advanced (CAE) test or an Occupational English Test (OET). (paragraph 1 of IMMI 15/062).

(b)  The language test must have been undertaken within the three years before the day on which the application was made. (paragraph 4 of IMMI 15/062).

(c)  The minimum scores as set out in paragraph 3 of IMMI 15/062.

(d)  The passports specified are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. (paragraph 6 of IMMI 15/062).

1. The secondary criteria to be satisfied at the time of application include that the visa applicant is a member of the family unit of, and made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria: cl.485.311.

2. It follows that the issues to be determined by the Tribunal are as follows:

Primary visa applicant

(a)  Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 28 April 2017 and achieved the applicable score specified in IMMI 15/062?; or

(b)  Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

Secondary visa applicant

(c)  Was the secondary visa applicant a member of the family unit of, and had they made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 – Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 28 April 2017 and achieved the applicable score specified in IMMI 15/062?

1. The applicant stated in response to one question in his visa application form that he had not undertaken an English test within the last 36 months demonstrating that he had at least competent English and in the response to another question he stated that he had. No evidence accompanied the visa application of such an English test within the prescribed time.

2. The applicant subsequently provided an IELTS test report dated 13 May 2017.

3. The Tribunal discussed with the primary visa applicant that based on the evidence before it, the Tribunal would be unable to conclude that, as required, the visa application had been accompanied by evidence that a specified language test, with the specified score, had been undertaken in the specified period, that is, in the three years before the date of the visa application on 28 April 2017 with the 13 May 2017 test falling outside that three year period.

4. The applicant’s representative conceded that the applicant does not meet the relevant law.

5. Having had regard to all matters, the Tribunal is satisfied that the primary visa applicant has completed a language test as specified however is not satisfied that the test was undertaken within the three years before 28 April 2017 as required.

6. The Tribunal finds that the primary visa applicant therefore does not satisfy cl.485.212(a)(ii), and consequently does not satisfy cl.485.212(a) and therefore the visa application was not accompanied by evidence of meeting that sub clause.

Issue 2 - Does the primary visa applicant hold a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

1. The applicant stated in the visa application, and confirmed at hearing, that he holds a Sri Lankan passport.

2. The applicant has provided the details of his Sri Lankan passport and no other. Therefore, the Tribunal finds that he does not hold a valid passport of a type specified by in IMMI 15/062.

3. The Tribunal finds that the primary visa applicant therefore does not satisfy cl.485.212(b) and consequently the visa application was not accompanied by evidence of meeting that sub clause.

Issue 3 - Was the secondary visa applicant a member of the family unit of, and had they made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria?

1. Accordingly, as the primary applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, the Tribunal finds that the secondary applicant does not meet the requirements of clause 485.311 which requires, amongst other things, that they are a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the visa.

Conclusion

1. On the basis of the above, the applicants do not meet the requirements of cl.485.212 and cl.485.311 respectively of Schedule 2 to the Regulations and therefore do not satisfy the criteria for the grant of Subclass 485 visas. As this is the only relevant subclass in this case, the decision under review will be affirmed.

OTHER MATTERS

1. The applicant’s representative requested that the Tribunal refer the matter to the Minister for intervention on the basis that the law is too harsh and the applicant applied by himself without the assistance of a migration agent or any legal advice. The representative noted that the applicant was only requesting a temporary visa not a permanent visa. It was submitted that the situation happened beyond the applicant’s control and he had no other visa option to stay in Australia. It was further submitted that the applicant was a genuine student and had completed his studies and to depart Australia having this visa refused would be a black mark against the applicant.

2. The Tribunal has considered the request for the Tribunal to recommend the matter to the Minister for intervention but declines to do so. It remains open to the applicants to make such a request if they believe that they have sufficient grounds to warrant Ministerial intervention.

DECISION

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

Susan Trotter

Member