Galib (Migration)

[2017] AATA 194

Galib (Migration) [2017] AATA 194 (3 February 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sravan Kumar Galib

CASE NUMBER:  1603835

DIBP REFERENCE(S):  BCC2016/129939

MEMBER:Alison Mercer

DATE:3 February 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 03 February 2017 at 5:30pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Specified passport – Medical certificate – Hearing reinstated – No specified test 36 months prior to application

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, cl 485.212, IMMI 15/062

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 8 January 2016. 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 15 March 2016 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport, and had indicated in his online visa application that he had not undertaken a specified English test in the 36 months immediately preceding making his visa application.

4. The Tribunal received a review application from the applicant on 21 March 2016, which was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Shiva Shesham, as his representative and authorised recipient for correspondence for the purposes of the review.

5. On 17 October 2016, the Tribunal wrote to the applicant via his agent to invite the applicant to attend a hearing at 9.30am on 22 November 2016.  He was advised that he should indicate within 7 days whether he would attend the hearing, and provide evidence of how he met the English proficiency requirements (which were set out for reference) and further, that if he failed to attend the hearing without a good reason, his application might be dismissed (in which case he could apply for his review application to be reinstated).

6. On 21 November 2016 at 6.19pm, the Tribunal received an email from the applicant’s agent attaching a scanned copy of a medical certificate issued on that date stating that the applicant was ‘unfit for his/her normal work from 21/11/16 to 28/11/16 inclusive (medical condition).’ The agent stated that the applicant would be unable to attend the hearing the following morning.

7. On 22 November 2016, the Tribunal wrote to the applicant via his agent advising that the Presiding Member had received the applicant’s medical certificate at 8.41am ahead of the 9.30am hearing that day, and noted that the applicant had not returned the hearing response form indicating that he would attend the hearing, nor any evidence of his English proficiency, although he was requested to do so in the hearing invitation letter dated 17 October 2016.  The applicant was advised that the Presiding Member further noted that the medical certificate provided did not specify that the applicant was unable to attend a Tribunal hearing.  The applicant was advised that, accordingly, the Tribunal intended to treat the hearing on 22 November 2016 as a ‘no show’ by the applicant, and would dismiss the application for review unless a more detailed medical certificate specifying that the review applicant was unable to attend (in person or by telephone) a hearing anticipated to take approximately 30 minutes at most, and if so, when he would be fit to do so, was provided. The applicant was given until 5pm on 25 November 2016 to provide a further medical certificate.

8. On 23 November 2016, the applicant’s agent provided a scanned copy of a PTE English test report form for the applicant dated 20 January 2016, noting that the Department did not accept it as it was undertaken after the date of the visa application (8 January 2016) although it was submitted to the Department within 28 days of the date of visa lodgment. He asked that the Tribunal take this into account as per usual Departmental policy.

9. On 24 November 2016, the applicant’s agent rang the Tribunal to query when the hearing would be rescheduled.  He was advised that the Presiding Member had specified that the hearing would not be rescheduled unless the applicant provided a more detailed medical certificate as per its letter of 22 November 2016, and that if this was not provided, the application for review would be dismissed.

10. The Tribunal did not receive a more detailed medical certificate, or any other information, from the applicant or his agent by 5pm on 25 November 2016.  Consequently, the Tribunal dismissed the applicant’s review application in a decision made on 2 December 2016.  The covering letter for this decision dated 5 December 2016 indicated that the applicant could apply to have his review application reinstated by the Tribunal if he felt that he had valid reasons for not attending the hearing on 22 November 2016.

11. On 6 December 2016, the applicant’s agent wrote to the Tribunal to advise that the applicant had already provided a medical certificate that he was unfit for work on 22 November 2016, which was normal practice in Australia, and that the applicant’s doctor refused to provide a more personal letter.  He further stated that the applicant was available to attend a hearing, but in the alternative, if the Tribunal could make a decision based on the applicant’s PTE English results, it was invited to do so.

12. On 19 December 2016, the Tribunal made a decision to reinstate the applicant’s review application and the applicant and his agent were notified of this on 20 December 2016.  On the same date, the Tribunal sent a hearing invitation to them for a telephone hearing to be conducted at 2pm on 13 January 2017.  The applicant was asked to confirm his participation and the number recorded for him by the Tribunal. 

13. The applicant participated in a telephone hearing with the Tribunal on 13 January 2017 to give evidence and present arguments. He confirmed that he had not undertaken a specified English test in the 3 years immediately before making his subclass 485 visa application.  He had done an International English Language Testing System (IELTS) test, which is a specified test, but he undertook this more than 3 years before lodging the subclass 485 visa application. 

14. The applicant said that he was not aware that he had to have done a specified English test in the 3 years prior to making his visa application.  A friend had told him that he had to file his subclass 485 visa application within 6 months of completing his Masters degree on 9 July 2015, so he was aware of this time constraint, and made arrangements to lodge it within this time frame, which he did on 8 January 2016.  The earliest date he could book a specified English test (in this case, a PTE Academic English test) was 20 January 2016, and he only realised that there was a problem with this when he was completing the visa application online and was asked whether he had done an English test in the 3 months prior to making the visa application.  The applicant said he tried to book an IELTS test as well but again, there were no available sitting dates prior to 8 January 2016.  

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)).

2. 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 meet cl.485.212(a).

3. The applicant has provided a PTE Academic Test Taker report form indicating that he obtained an overall score of 55 in a test undertaken on 20 January 2016.

4. IMMI 15/062 provides that a PTE Academic Test is a specified test for these purposes, and the minimum overall score required for a PTE Academic Test is 50 points. However, item 4 of IMMI 15/062 specifies that any test relied upon must have been undertaken within the 3 years before the day on which the application was made. In this case, it is not disputed that the applicant made his visa application on 8 January 2016. The PTE Academic Test of 20 January 2016 was therefore not undertaken within the 3 years before the day on which the application was made, and thus cannot be taken into account to satisfy cl.485.212(b).

5. The applicant indicated in his visa application that he had not undertaken any other specified English test in the 36 months immediately preceding lodgment of his visa application, and he confirmed this at the hearing.  He indicated he had previously undertaken an IELTS test, but outside the 36 months period.

6. The Tribunal notes that the applicant’s agent argued that it was Departmental practice to accept a specified English test in which the required scores were obtained, as satisfying cl.485.215 so long as it was provided to the Department within 28 days of the lodgment of the visa application. However, the Tribunal is satisfied that there is no legal basis for this assertion, as the combined effect of cl.485.212(b) and item 4 of IMMI 15/062 makes it clear that only a specified test undertaken in the 36 months immediately before the visa application was made can be taken into account for the purposes of this visa.

7. On the basis of the above, the Tribunal must find that 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

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

Alison Mercer
Member