HARDEEP KAUR (Migration)

[2017] AATA 3107

HARDEEP KAUR (Migration) [2017] AATA 3107 (21 September 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Hardeep Kaur
Mr Raj Kumar

CASE NUMBER:  1710796

DIBP REFERENCE(S):  BCC2017/1023445

MEMBER:Wan Shum

DATE:21 September 2017

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 21 September 2017 at 11:04am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – Minimum score –Test taken within previous 36 months – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 15 March 2017. 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 visas on 3 May 2017 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants sought review of this decision and were represented in relation to the review by a registered migration agent.

5. The applicants were invited to give evidence and present arguments to the Tribunal by telephone on 20 September 2017 from 1 pm. The Tribunal received a response to the invitation from the representative advising that the applicants would participate in the hearing from his offices in Canberra. However, at around 12.30 pm on the day of the hearing, the Tribunal received a phone call from the representative stating that the applicant would not be attending as she was unwell. The representative did not provide a doctor’s certificate stating that the applicant was not able to attend the scheduled hearing. An officer of the Tribunal advised the representative that, in these circumstances, the applicant and the representative would be contacted for the hearing by phone later in the afternoon. Around 2.40 pm, the applicant and representative were phoned and the applicant confirmed that she would participate in the hearing.

   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 IMMI 15/062.

8. In the present case, the applicant holds a passport of India. There is no evidence that the applicant holds a passport of a type specified, and as such cl.485.212(b) is not met. Therefore the applicant must meet cl.485.212(a).

9. At the time of application the applicant indicated she had undertaken an English language test in the previous 36 months and has evidence of the English language requirement. She provided a test result for a PTE Academic test taken on 2 September 2016 with an overall score of 43. The minimum overall score for the PTE Academic specified in IMMI 15/062, for the purposes of cl.485.212(a)(ii), is 50. The delegate refused to grant the visas on the basis that the applicant did not meet cl.485.212(a) or (b).

10. On review, the applicant provided evidence that she had undertaken a PTE Academic test on 23 August 2017 where she achieved an overall score of 58. During the hearing the Tribunal discussed with the applicant the requirements of cl.485.212. The applicant indicated that when she had applied for the visa she did not have the necessary score but she made a mistake. She has now taken another English exam and asked the Tribunal to take that result into account. The Tribunal explained that, while she had now achieved the required scores, the test taken after the visa application was made does not meet the requirements of the period specified in the relevant instrument because it was not taken within the three years before the day on which the visa application was made.

11. The applicant gave evidence that she had studied here and worked hard. She knew it was her mistake but wanted one more chance. The applicant referred to sitting for IELTS tests but that she did not achieve the required scores.

12. The Tribunal has considered all of the applicant’s written and oral evidence. The PTE Academic test result provided to the Department by the applicant does not meet the required minimum overall score of 50 as specified in IMMI 15/062 paragraph 3. While the applicant has achieved the minimum specified score in a PTE Academic test undertaken on 23 August 2017, this was taken after the visa application was made. Accordingly the results do not meet the requirement specified in IMMI 15/062 paragraph 4, that the specified English language test must have been undertaken within the three years before the day on which the application was made. Therefore these results also do not satisfy the requirements of cl.485.212(a).

13. On the basis of the evidence before it, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

14. The Tribunal has no power to waive the requirement or any discretion in this matter. It is unable to find that she meets the requirements of cl.485.212 on the information provided.

15. As the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations, she therefore does not satisfy the criteria for the grant of a Subclass 485 visa. Accordingly, the decisions under review will be affirmed.

    DECISION

16. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Wan Shum
    Member