Joseph (Migration)

Case [2018] AATA 2982

Joseph (Migration) [2018] AATA 2982 (4 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chinedu Joewhite Joseph

CASE NUMBER:  1813000

DIBP REFERENCE(S):  BCC2018/1150210

MEMBER:Wan Shum

DATE:4 July 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.212 of Schedule 2 to the Regulations.

Statement made on 04 July 2018 at 3:12pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Specified language test undertaken within specified period – IELTS test results provided – Decision under review remitted

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 applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

  2. The applicant applied for the visa on 10 March 2018. 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).

  3. The delegate refused the visa on 19 April 2018 because the applicant did not have the required English language proficiency. However, on review, the applicant submitted his language test results and as such, a hearing was not necessary.

  4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

    CONSIDERATION OF CLAIMS AND EVIDENCE

  5. 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)).

  6. 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).

  7. When making the visa application, the applicant indicated on the application form that he either held a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or had undertaken an English test within the last 36 months that demonstrated that he met the English language requirement. He then provided details of having undertaken an IELTS test.

  8. On review, the applicant provided a copy of an IELTS test undertaken on 3 February 2018 with TRF number 17AU012593JOSC468A. This does not appear to have been given to the department. In this test, the applicant achieved 5.5 in listening and reading, 6.0 in writing and 6.5 in speaking, with an overall band score of 6.0. The results have been verified through the IELTS online verification system.

  9. The IELTS test is one of the specified language tests for the purposes of cl.485.212(a)(i) and his results meet the requirements of cl.485.212(a)(ii).

  10. The Tribunal thus finds that the requirements of cl.485.212(a) have been met.

  11. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

  12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.212 of Schedule 2 to the Regulations.

    Wan Shum
    Member

Details
AGLC
Joseph (Migration) [2018] AATA 2982
Case
[2018] AATA 2982
Decision Date

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Joseph, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485. The central dispute concerned whether the applicant had met the English language proficiency requirements stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994.

The Tribunal was required to determine if the applicant had provided evidence of undertaking a specified language test within the specified period and achieving the required score, or if the applicant held a passport of a type specified by the Minister. The relevant instrument, IMMI 15/062, outlined these requirements.

The Tribunal found that the applicant did not meet the alternative criterion of holding a specified passport. However, it determined that the applicant had satisfied clause 485.212(a) by providing evidence of an IELTS test undertaken on 3 February 2018. The results of this test, which were verified, met the specified score requirements for the IELTS test as a designated language test. Consequently, the Tribunal remitted the application for reconsideration by the Minister, with a direction that the applicant had met the criteria under clause 485.212.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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)). 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). When making the visa application, the applicant indicated on the application form that he either held a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or had undertaken an English test within the last 36 months that demonstrated that he met the English language requirement. He then provided details of having undertaken an IELTS test. On review, the applicant provided a copy of an IELTS test undertaken on 3 February 2018 with TRF number 17AU012593JOSC468A. This does not appear to have been given to the department. In this test, the applicant achieved 5.5 in listening and reading, 6.0 in writing and 6.5 in speaking, with an overall band score of 6.0. The results have been verified through the IELTS online verification system. The IELTS test is one of the specified language tests for the purposes of cl.485.212(a)(i) and his results meet the requirements of cl.485.212(a)(ii). The Tribunal thus finds that the requirements of cl.485.212(a) have been met. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:· cl.485.212 of Schedule 2 to the Regulations.Wan ShumMember

Decision

Reasons for decision

On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.DECISION The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:· cl.485.212 of Schedule 2 to the Regulations.Wan ShumMember

Ratio Decidendi

Legal Principle Established

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