K C (Migration)

[2020] AATA 4933

K C (Migration) [2020] AATA 4933 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Yuv Raj K C

CASE NUMBER:  1927866

DIBP REFERENCE(S):  BCC2019/3050071

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 June 2020 at 1:53 pm (VIC time)

DATE OF WRITTEN RECORD:                6 November 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 06 November 2020 at 11:32am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – application not accompanied by required evidence – minimum required score not achieved – 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 18 September 2019 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 24 June 2020 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 K C, as we have discussed, you were born on 19 August 1992.  You are 27 years of age and you travel on a Nepalese passport.

4. You initially arrived in Australia on 14 October 2014, and on 15 June 2019 you lodged on online application for the grant of Subclass 485 Temporary Graduate (Class VC) Post-Study Work Visa. 

5. The delegate considered your application and found that you did not meet the English language requirements for the grant of the visa or you did not provide evidence that you did so, and refused your application. You appealed that decision to be reviewed by this Tribunal. 

6. With your review you included a copy of the primary decision and you told the Tribunal you have read and understood that decision which we discussed today, and I read from in some detail.

7. To be eligible for the grant of a 485 visa an applicant must satisfy a number of requirements set out in the regulations.  One of those is clause 485.212 which states:

   The application was accompanied by evidence that the applicant has undertaken a language test specified by the Minister in the period specified by the Minister and has scored an acceptable score.

8. For the purposes of 485.212 the Minister has specified a number of approved language tests including the Pearson test of English (PTE) which is apparently the test that you had intended providing to the department.

9. To satisfy the requirements using this method you were required to provide evidence that in the three-year period before the date of your application you had completed a test in which you achieved a minimum score of 50. 

10. In completing your application you answered “Yes “to the question, 'Have you undertaken an English test within the last 36 months?' and 'Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland?' 

11. Reading from your decision it says that on 9 August 2019 your application was assessed and an email was sent to your agent requesting evidence that you held an eligible passport or had undertaken the required English language test in the 36 months prior to lodgement.

12. On 12 September 2019 in support of your English language capability you provided a Pearson web account confirmation and your agent said you had not provided the test results due to technical difficulties. Consequently, the delegate found that as you did not provide evidence to support your claim the delegate was unable to be satisfied you met 485.212.

13. You have today told the Tribunal that you had sat the test but had not achieved the level required for the grant of a visa, and when I asked whether you had anything further to say or anything else you wanted me to consider you said “No”.

14. Mr K C, the situation is the English language requirement is one of the mandatory requirements that must be met at the time of lodging the Subclass 485 Post-Study Work Stream Visa application.  As you have not provided evidence of having successfully completed an acceptable English test within the three years immediately before the day on which you lodged your application, you do not satisfy regulation 485.212(a).

15. You travel on a Nepalese passport and have not provided any evidence you hold one of the specified passports, so you do not satisfy 485.212(b).

16. As clause 485.212 is not met I find the criteria for the grant of a Subclass 485 Temporary Graduate Visa in the Post-Study Work Stream are not met, and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision under review.

    Tim Connellan
    Member