Hora (Migration)

[2021] AATA 1123

Hora (Migration) [2021] AATA 1123 (21 April 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Esther Hora

CASE NUMBER:  1931467

HOME AFFAIRS REFERENCE(S):  BCC2019/3764793

MEMBER:Ian Berry

DATE:21 April 2021

PLACE OF DECISION:  Brisbane

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

Statement made on 21 April 2021 at 9:23am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – English language proficiency – two results from specified test provided to department, one dated more than three years before application made, the other after application made – decision under review affirmed

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

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 applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 30 July 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 (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 visa on 15 October 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 14 April 2021 to give evidence and present arguments.  The applicant intended to call two witnesses who were to give character evidence on her behalf.  Initially, the applicant decided her witnesses would call to give evidence by telephone after the evidence of the applicant was completed.  At the end of the applicant’s evidence, the Tribunal indicated that the Tribunal has noted the evidence in the Department and Tribunal files and indicated that the applicant indeed, did not need to call character witnesses as her record was impeccable.  The Tribunal did not want to interfere with the way in which the applicant presented her case and again invited her to witnesses should she so prefer.  She decided that to it was unnecessary for those witnesses to be called.  The applicant was invited to make submissions which she did.  

5. The applicant was represented in relation to the review by her registered migration agent Mrs C Coleman MARN 0961462. The migration agent did not attend the hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. 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).

9. Although the applicant is a citizen of the Solomon Islands, in her Temporary Graduate (Post Study Work Stream) (Class VC) (Subclass 485) visa application made 30 July 2019, ‘yes’ in the following declaration:

   Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?

10. The applicant said in her evidence that she did honestly make a mistake which the Tribunal fully accepts.

11. Evidence provided by the applicant to the Department consisted of two IELTS[1] results, the first of which was made on 7 September 2013 and the last (after her visa application) on 26 September 2019.  The first test result pre-dated her application by more than 36 months and the latter post-dated that application.

    [1] International English Language Test System

12. Cl.485.212(a)(ii) provides:

    The application was accompanied by evidence that:

    (a)      the applicant:

    (i)       has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

    (ii)      has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

    (b)the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

13. The legislative instrument referred to in cl.485.212(a)(ii) is IMMI 15/062 and it stated in paragraph 4  ‘SPECIFIED  for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations   the following English language tests must have been undertaken within the three  years before the day on which the application was made: …’

14. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212 (a).

15. Based on 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

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

    Ian Berry
    Member