EHTEDAEI (Migration)

[2018] AATA 5585

EHTEDAEI (Migration) [2018] AATA 5585 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr HAMED EHTEDAEI

CASE NUMBER:  1809025

DIBP REFERENCE(S):  BCC2018/771588

MEMBER:R. Skaros

DATE:24 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 24 October 2018 at 12:00pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 – English language proficiency – had not undertaken the specified language test within the specified  period of three years before the day on which the application was made – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994, 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 15 February 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 13 March 2018 because the applicant did not have the required English language proficiency. The applicant provided a copy of the delegate’s decision record to the Tribunal.

4. On 17 August 2018, the Tribunal wrote to the applicant and invited him to provide information about the English language proficiency requirements in cl.485.212. The Tribunal received a statement from the applicant. The applicant also provided copies of IELTS test reports for tests undertaken on 10 January 2015, 15 March 2018 and 24 March 2018.

5. The applicant appeared before the Tribunal on 18 October 2018 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. 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, and as such cl.485.212(b) is not met. As such, the applicant must satisfy cl.485.212(a).

9. The applicant indicated in the application form that he had not undertaken an English language test within the preceding 36 months. The applicant provided to the Department a copy of an IELTS test report for a test undertaken 10 January 2015. Even though the applicant had achieved the specified scores on that test, as the test was not undertaken within the three years before the application was made, the delegate refused the application. 

10. On review, the Tribunal received a statement in which the applicant detailed his personal circumstances at the time of application. He also stated that he realised a new IELTS report was required as he was completing the online application but as the system permitted him to continue with the application, he decided to lodge it and thought he could provide the information later. He was surprised to get a prompt refusal of his application, which he received two days before the expiry of his visa. He stated that he sought advice and was told he could lodge another application before his visa expires, but he decided not to because the Department’s advice suggested that he could not reapply.

11. The Instrument (IMMI 15/062) prescribes that an IELTS test is specified for the purposes of cl.485.212(a). An overall score of at least 6.0, with not less than 5.0 in each of the 4 test components, is required and the IELTS test must have been undertaken within the three years before the day on which the application was made.

12. Although the applicant had achieved the specified score in the IELTS tests he had undertaken on 10 January 2015, 15 March 2018 and 24 March 2018, unfortunately, these test were undertaken prior to and post the prescribed period. Accordingly, the scores specified were not achieved in a test undertaken within the three years before the day on which the application was made.

13. At the hearing, the Tribunal discussed with the applicant the requirements in cl.485.212 and the evidence before it which indicates he does not meet the requirements. The applicant accepted that he did not sit the test within the specified time and stated that he was not thinking clearly at that time because of his personal circumstances. He stated that he had the option of lodging another application before the expiry of his visa but the Department’s letter stated he could only apply for limited types of visas in Australia. The Tribunal explained that the decision notification generally contains generic information about the decision outcome, right of review, the validity of any bridging visas held during the processing of the application and would have included links to the Department’s further information about visa options. It noted that as each applicant’s circumstances are different, the onus was on him to seek advice relevant to his circumstances.

14. The Tribunal has had regard to the matters raised by the applicant, however, as explained to the applicant at the hearing, the Tribunal cannot waive the requirements and must make its decision in accordance with the legislative provisions.

15. 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).

16. 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

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

    R. Skaros
    Member