Ipe Varghese (Migration)

[2021] AATA 5383

Ipe Varghese (Migration) [2021] AATA 5383 (22 October 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Savio Ipe Varghese

CASE NUMBER:  2107288

DIBP REFERENCE(S):  BCC2019/5288990

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 October 2021 at 1:25 pm (VIC time)

DATE OF WRITTEN RECORD:                11 November 2021

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 11 November 2021 at 11:58am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post Study Work stream – English language proficiency – application not accompanied by required evidence – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 31 May 2021 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 October 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Savio Ipe Varghese, you applied for the grant of a 485 Temporary Graduate visa on 22 October 2019.  The delegate considered your case and found that you did not meet the English language requirements for the grant of a visa because your application was not accompanied by evidence that you had undertaken an English language test.

4. You appealed that decision to be reviewed by this Tribunal and you have subsequently provided a copy of the primary decision which you told the Tribunal you have read and understood.  We have been through that decision today and it is clear that you understand why the decision was made.

5. To be eligible for the grant of a 485 visa an applicant must satisfy a number of requirements as set out in the Regulations and one of those is clause 485.212 which requires that the 485 visa application is accompanied by evidence that the applicant has undertaken an English test specified by the Minister in a period before the date of the application and has achieved the required score; or that the applicant holds a passport from the UK, the USA, Canada, New Zealand or the Republic of Ireland.  You have told the Tribunal today that you travel on a passport of India, so the passport element is not relevant.

6. When I read from your decision it states that you lodged the application online, you declared “Yes” to the question about whether you hold an eligible passport or had undertaken a test within the last 36 months.  In support of the English language capability you provided an English language test result from Pearson PTE Academic that you had taken on 25 October 2019 which was after you had lodged your application and therefore it cannot be considered.

7. You have today told the Tribunal that you had previously undertaken an IELTS test, but you told the Tribunal that test has expired and therefore is no longer applicable.

8. The question of whether an applicant satisfies 485.212 is not a matter of discretion.  The English language requirement is a mandatory requirement and it must be met at the time of lodging a 485 Post‑Study Work stream application.  The requirement is specific and unambiguous.

9. As you did not provide evidence of having done an acceptable English test within the three years immediately before the day on which this application was made, you do not satisfy 485.212(a)(i) as detailed in your decision and as already stated, you do not hold a passport of one of the nominated countries. 

10. As you have not satisfied the criteria for the English language ability I find the criteria for the grant of a subclass 485 Temporary Graduate visa are not met and it is therefore the decision of this Tribunal to affirm the decision under review. 

11. This decision was made at 1.25 pm on 22 October 2021. 

    DECISION

12. The Tribunal affirms the decision under review.

    Tim Connellan
    Member