Haasiani (Migration)

[2018] AATA 1199

Haasiani (Migration) [2018] AATA 1199 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Nova Haasiani

CASE NUMBER:  1722743

DIBP REFERENCE(S):  BCC2017/2828477

MEMBER:Karen Synon

DATE:10 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2018 at 3:50pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant has the required English language proficiency – Requirement for evidence of proficiency to accompany application – Evidence not provided until after application made

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212(a)

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 August 2017. 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 5 September 2017 because the applicant did not have the required English language proficiency.  The applicant applied for review of the primary decision on 25 September 2017 and provided a copy of the department’s decision.

4. The applicant appeared before the Tribunal on 10 April 2018 to give evidence and present arguments.

5. 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, the applicant stated at the hearing that she did not hold a passport specified, being a passport of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, and as such cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

3. The primary decision records that the applicant answered ‘no’ to the (relevant) question ‘have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?’  The Tribunal also notes that the applicant provided to it a copy the results of an IELTS test she undertook on 9 September 2017 which is over a month after she applied for the visa and invited her to comment on this.  The applicant said she was unaware of the time frame and expected some communication from the department.  She now understands she needed to provide her English evidence at the time of application and said she understood the Tribunal can not make a favourable decision in this case.

4. The evidence before the Tribunal, as documented in the primary decision and conceded by the applicant in her evidence during the hearing, is that her visa application was not accompanied by evidence of her having undertaken an English language test specified by the Minister within the period specified, which is three years before the day on which the application is made, and achieved the score specified by the Minister. Consequently, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

5. 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

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

Karen Synon
Member