Jaiswal (Migration)

[2023] AATA 4346

Jaiswal (Migration) [2023] AATA 4346 (18 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Samridhi Jaiswal
Mr Pranav Kapoor

REPRESENTATIVE:  Mrs Vaishalee Karanjgaokar (MARN: 1574036)

CASE NUMBER:  2117464

HOME AFFAIRS REFERENCE(S):          BCC2021/602803

MEMBER:Warren Stooke AM

DATE:18 December 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 18 December 2023 at 5:37pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – IELTS Test results at date of application – recommendation regarding Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

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 applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 28 April 2021. 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 visas on 12 November 2021 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 25 September 2023 to give evidence and present arguments.

5. The applicants were represented in relation to the review.

6. The applicant stated that she had received a copy of the delegate’s decision from the Department, which she had read and provided a copy to the Tribunal with her application for review.

7. The applicant stated that she understood the application was refused because of the English language score.

8. 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. Clause 485.212(1) 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(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. The applicant is a 28 year old from India, who was granted a Bridging Visa A on 28 April 2021 with the condition 8501 to maintain health insurance, which became active when the Student (Temporary) Visa ended on 7 May 2021.

4. 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(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).

5. The applicant provided evidence that she undertook an IELTS English language test on 2 March 2021 and achieved the following scores:

   a.Listening – 6.5

   b.Reading – 4.5

   c.Speaking – 8.5

   d.Writing – 6.0

   e.Overall – 6.5

6. The applicant provided evidence at hearing that all of her secondary education was undertaken in the English language.

7. The applicant provided evidence of the completion of an Advanced Diploma in Hospitality Management that was conferred on 16 December 2020 following the successful completion of a Certificate III and Certificate IV in Commercial Cookery.

8. The applicant provided evidence of health insurance with BUPA valid from 27 April 2021.

9. The applicant provided evidence, at hearing, that she is currently working as a Food and Beverage supervisor with Rydges Hotel group on a minimum hourly rate of $27.98 and $36.83 on Saturday’s.

10. The applicant stated that her husband had applied for a 190 visa after seeking a 482 visa, whereupon he was not able to secure a sponsor.

11. The applicant provided evidence of a second IELTS English language test that was undertaken on 4 April 2023, with the following scores:

    a.Listening – 6.5

    b.Reading – 6.5

    c.Speaking – 7.5

    d.Writing – 7.0

    e.Overall – 7.0

12. On the basis of the evidence that Tribunal is satisfied that the applicant does not satisfy cl 485.212(1) given that the score for reading is less than the required score of 5.0.

13. The applicant explained to the Tribunal that she did not realise, having achieved an overall score of 6.5 that she would not meet the required criteria by having a score of less than 5.0 for reading.

14. Whilst the Tribunal empathises that the IELTS scores obtained in the test of 2 March 2021, include an aberration regarding her reading skill level, when compared with the score achieved in the test of 4 April 2023 (submitted after the Department decision), the Tribunal is satisfied that the applicant has not met the requirements of cl 485.212, at the time of application.

15. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

16. 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.

Ministerial Reference

1. The applicant has not made an application pursuant to s351, the Tribunal notes that the applicant has the right to refer the case to the Department for consideration by the Minister pursuant to s.351, which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so. Whilst the applicant has not applied to the Tribunal for a Ministerial Reference, the Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and notes that the applicant can still make a request directly to the Minister.

2. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:  >

   The guidelines that relate to unique or exceptional circumstances, include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

3. The Tribunal has considered the applicant’s circumstances in this case and accepts that the IELTS English language score pertaining to ‘reading’ in the test undertaken on 2 March 2021 was an aberration and that the applicant has demonstrated through the conduct of her secondary education in an English speaking school and the subsequent IELTS test undertaken on 4 April 2023 that she is competent in the English language. In this regard, the Tribunal acknowledges that the applicant achieved an overall score of 7.0 in the 4 April 2023 IELTS English language test and a score for reading of 6.5, which exceed the minimum standard of 5.0 for the required scores.

4. As such, the Tribunal considers that compelling and compassionate circumstances are present in this case, which could be worthy of the applicant’s consideration to refer the matter to the Minister.

DECISION

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

Warren Stooke AM
Member