Fan (Migration)

[2019] AATA 6291

Fan (Migration) [2019] AATA 6291 (23 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Lijia Fan

CASE NUMBER:  1903290

HOME AFFAIRS REFERENCE(S):          BCC2018/5705869

MEMBER:K. Chapman

DATE:23 September 2019

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criterion for a Subclass 485 visa:

·cl.485.212 of Schedule 2 to the Regulations.

Statement made on 23 September 2019 at 11:37am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – Post-Study Work stream – English language test meets all of the requirements – evidence provided – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
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 Home Affairs on 7 February 2019 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 18 December 2018. Visa Class VC contains Subclass 485 (Temporary Graduate). 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’), including criteria in different streams. In this case, the applicant is seeking to meet the criteria in the Post-Study Work stream, which include cl.485.212.

3. The delegate refused to grant the visa because, in their view, the applicant did not demonstrate the required English language proficiency in accordance with cl.485.212(a).

4. The Tribunal did not consider a hearing to be necessary in this matter, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. Accordingly, for the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   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 IMMI15/062. 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 satisfied. Therefore, the applicant must satisfy cl.485.212(a).

8. The Tribunal notes the applicant applied for the Subclass 485 visa on 18 December 2018, indicating she had undertaken an English language test. The applicant submitted to the Department a result for an Occupational English Test (OET) she undertook on 14 April 2018. The results of that test were below the score specified by the Minister.

9. The applicant subsequently submitted to the Tribunal results for an IELTS English language test undertaken by her on 16 December 2017 (contained at folio 6 of the Tribunal file). These results achieve the required scores specified in Instrument IMMI 15/062, comprising an overall band score of 6.5 with test components ranging from 5.5 to 7. This IELTS test was undertaken within the three years before the day on which the Subclass 485 visa application was made. The Tribunal has independently verified the veracity of the aforementioned IELTS test.

10. The IELTS English language test undertaken on 16 December 2017 is a type of test specified in Instrument IMMI 15/062 and it was also undertaken within the three years before the day on which the Subclass 485 visa application was made as required by the Instrument. Therefore, the Tribunal is satisfied that the aforementioned English language test meets all of the requirements specified in the Instrument. Accordingly, the Tribunal is satisfied that the visa application was accompanied by evidence that meets the requirements of cl.485.212(a).

11. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.212 of Schedule 2 to the Regulations.

    K. Chapman
    Member