Guirguis (Migration)

[2024] AATA 2867

Guirguis (Migration) [2024] AATA 2867 (1 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Albert Kamal Abdou Saad Guirguis
Mrs Catrin Behnam Ibrahim Abdalla
Miss Clara Albert Kamal Abdou Saad Guirguis
Mr Carlos Albert Kamal Abdou Saad Guirguis

CASE NUMBER:  2307552

HOME AFFAIRS REFERENCE(S):          BCC2023/1291905

MEMBER:Peter Katsambanis

DATE:1 August 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.212 of Schedule 2 to the Regulations.

Statement made on 01 August 2024 at 2:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IMMI 15/062 – Pearson PTE Academic test – minimum test score – decision under review remitted

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 Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 22 February 2023. 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 (Cth) (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 18 May 2023 because the first named applicant did not have the required English language proficiency.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the first named applicant satisfies cl 485.212. Clause 485.212(1) 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(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. There is no evidence before the Tribunal to indicate that the first named applicant, at the time he made his application, held a visa that is a class of visa specified in cl 485.232 or cl 485.233, which require that an applicant must hold a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream when the application for the current visa was made. Accordingly, the first named applicant does not satisfy cl 485.232 or cl 485.233 and, therefore, cl 485.212(1) does apply in his circumstances.

4. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062, unless the applicant holds a passport of the type specified in cl 485.212(1)(b). It is noted that IMMI 15/062 was revoked by LIN 24/021, which commenced operation on 23 March 2024. However, IMMI 15/062 continues to apply to applications made, but not yet finally determined, before the commencement of LIN 24/021.

5. In the present case, the first named applicant holds a passport from the Arab Republic of Egypt and there is no evidence that the first named applicant has held a passport of a type specified in IMMI 15/062. Therefore, cl 485.212(1)(b) is not met and the first named applicant must meet cl 485.212(1)(a).

6. The delegate’s decision record notes that the first named applicant did not provide any evidence to the Department that he met the English language proficiency requirements in cl 485.212(1)(a) at any time before the delegate’s decision made on 18 May 2023.

7. On 30 May 2023, the first named applicant provided the Tribunal with a copy of a Pearson PTE Academic test that he completed in Australia on 25 May 2023. The results on this test were recorded as follows:

• Listening - 75

• Reading - 71

• Speaking - 82

• Writing - 70

• Overall Score - 74

1. The minimum scores the Minister has specified in IMMI 15/062 in relation to a Pearson PTE Academic test requires that an applicant achieve at least a minimum score each of 36 for listening, reading, speaking and writing and at least a minimum overall score of 50.

2. The test results that the first named applicant has provided to the Tribunal indicate that he has achieved these minimum scores. Based on these test results, the Tribunal is satisfied that the first named applicant now meets the language test requirements specified by the Minister. Accordingly, on the evidence before it, the Tribunal is satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

3. On the basis of the above, the first named 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, including the claims made by the secondary applicants in this matter on the basis of their membership of the first named applicant’s family unit.

DECISION

1. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   · cl 485.212 of Schedule 2 to the Regulations.

Peter Katsambanis
Member