Gupta (Migration)

[2019] AATA 6042

Gupta (Migration) [2019] AATA 6042 (25 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Akshata Gupta

CASE NUMBER:  1913184

DIBP REFERENCE(S):  BCC2019/1286694

MEMBER:Warren Stooke AM

DATE:25 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 25 November 2019 at 4:05pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Graduate Temporary) – English language proficiency – did not provide IELTS within time frame – 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 13 March 2019. 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 to grant the visa on 21 May 2019 on the basis that the applicant did not satisfy cl.485.212 of Schedule 2 to the Regulations because at the time of application, the applicant did not provide evidence of having completed an English language capability test.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the reason for the refusal to grant the visa was because she did not have a valid English proficiency score at the time she lodged her application.

6. The applicant confirmed to the Tribunal that she had provided a copy of the decision to the Tribunal with her application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 of the Register of Instruments - Skilled visas. 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).

10. The applicant confirmed in evidence that she completed an IELTS English language test on 20 March 2019, which was subsequent to the date of application for a Temporary Graduate (Class VC) (Post Study Work stream) subclass 485 visa.

11. The applicant provided evidence that not undertaking the English language capability test was an oversight and it was only on the day of application that she realised she had made a mistake.

12. The applicant stated that she had undertaken a Master of Health Science, at Deakin University.

13. Further, the applicant stated that she has an application with Engineering Australia, in relation to her skills assessment.

14. The applicant submitted that she attended an English speaking school throughout her education in India and she provided the Tribunal with a copy of her TOEFL iBT score, which had a test date of 20 December 2015 and an overall score of 104. [Tribunal File: Folios 21-22]

15. The Tribunal is not satisfied the applicant has undertaken a language test specified in the instrument; and or has achieved, within the period specified in the instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)).

16. Accordingly, cl.485.212(a) is not met.

17. On the basis of the above findings, the applicant 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

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

    Warren Stooke AM
    Member