Dissanayake (Migration)

[2019] AATA 2866

Dissanayake (Migration) [2019] AATA 2866 (28 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr D Mudiyanselage Priyantha Laxman Joseph Dissanayake

CASE NUMBER:  1829136

DIBP REFERENCE(S):  BCC2018/2836956

MEMBER:Michael Cooke

DATE:28 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 28 February 2019 at 5:14pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – must have been undertaken within three years before date of visa application – test not undertaken within prescribed period – 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 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 29 July 2018. 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 (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 17 September 2018 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 26 February 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. 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 in the Instrument and, as such, cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).

8. The applicant performed an IELTS test on 14 August 2018 and submitted it to the Tribunal after the date by which he had to present the document - which was prior to the date of application (29 July 2018) (T1, f.27).The English test must be met at the time of lodging the Post-Study Work Stream (VC485) visa application and must have been undertaken within the three years before the day on which the visa application was made. The Court has held that the language of IMMI15/062 provides no scope for consideration by the Tribunal of why an English test was not undertaken within the prescribed period.

9. The document he has submitted to the Tribunal also shows he scored 4.5 for the Reading component. He thus failed to secure the required score of 5. He, therefore, has not achieved, within the period specified in the Instrument, the score specified in the Instrument and does not satisfy cl.485.212(a)(ii).

10. The Tribunal, therefore, is not satisfied that the application was accompanied by evidence that he meets cl.485.212(a). 

11. On the basis of the above, the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations. He, 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

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

    Michael Cooke
    Senior Member