Kang (Migration)

[2018] AATA 1789

Kang (Migration) [2018] AATA 1789 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jinho Kang

CASE NUMBER:  1710979

DIBP REFERENCE(S):  BCC2017/1007629

MEMBER:Denise Connolly

DATE:30 April 2018

PLACE OF DECISION:  Perth

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

Statement made on 30 April 2018 at 4:26pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IELTS test score – PTE Academic tests – Test completed after visa application – Decision under review affirmed

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) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 March 2017. Visa Class VC contains Subclass 485. 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). The primary criteria must be satisfied by the applicant.

3. The delegate refused the visa on 5 May 2017 because the visa application was not accompanied by evidence that the applicant met the English language requirements as set out in the relevant instrument.

4. The applicant appeared before the Tribunal on 30 April 2018 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent.

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.

9. The applicant is a citizen of South Korea. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Accordingly the applicant must meet cl.485.212(a).

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making his visa application online on 14 March 2017 the applicant declared that he had undertaken an IELTS test on 21 January 2017. The applicant provided an IELTS Test Reference Number. The delegate explained that the IELTS verification website confirms that in that particular test the applicant achieved an overall band score of 5.5. The delegate explained that as there was no evidence that he had undertaken a specified test in the three-year period ending immediately before the day on which he made his visa application, in which he achieved the required scores (relevantly for an IELTS test, a minimum overall score of 6), he had not met the requirements of cl.485.212(a). She noted that there was no evidence that he held a passport of a type specified by the Minister and therefore did not meet cl.485.212(b).

11. The applicant has provided to the Tribunal test results for two PTE Academic Tests in which he achieved the following scores:

    a.in a test undertaken on 15 September 2017 he achieved an overall score of 54

    b.in a test undertaken on 19 December 2017 he achieved an overall score of 54.

12. The Tribunal notes that both of those tests were undertaken after the date of the visa application.

13. At the hearing the Tribunal discussed with the applicant the requirement that his visa application be accompanied by evidence that he had achieved the required scores in a specified test, in the specified period. The applicant explained that he applied for the visa when he did on the basis of poor advice from a migration agent, who also told him that he could provide evidence of achieving the English language requirements at a later date. He indicated he would not have applied for the visa when he did if he had been given correct advice. The Tribunal explained that it does not have any discretion to waive the requirements of cl.485.212.

14. On the basis of the evidence before it the Tribunal finds that the applicant undertook an IELTS test on 21 January 2017, a specified test in the specified period, but he did not achieve the minimum overall score of 6, as specified in the instrument. On the basis of the applicant’s evidence regarding the PTE Academic Tests he undertook on 15 September 2017 and 19 December 2017, the Tribunal accepts that the applicant has achieved the specified scores in a specified test. However the PTE tests were not undertaken in the period specified in the instrument, that is, within the three years before the day on which the application was made, 14 March 2017.

15. Accordingly on the evidence before it, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(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.

    DECISION

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

    Denise Connolly
    Member