KOMAKECH (Migration)

[2018] AATA 5943

KOMAKECH (Migration) [2018] AATA 5943 (8 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Opiyo Alvin KOMAKECH

CASE NUMBER:  1708141

DIBP REFERENCE(S):  BCC2017/692406

MEMBER:Nicola Findson

DATE:8 August 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 08 August 2018 at 9:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – required English language proficiency – no English language test within 3 years before application – IELTS test after application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(i)

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 21 February 2017. 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 (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 visa on 3 April 2017 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 31 July 2018 to give evidence and present arguments.  

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. 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).

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record.  It records that in his visa application he declared he had not undertaken an English language test within the last 36 months.  It further records that the applicant subsequently provided to the Department, an International English Language Test System (IELTS) Test Report Form recording that he sat a test on 4 March 2017, in support of the English language requirement.  The delegate found that the applicant did not satisfy 485.212(a)(i) as he undertook the English language test after his visa application was lodged.

9. At the hearing the Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirement the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made.

10. The applicant indicated to the Tribunal that he now understood the requirements for the visa.  He said he had previously undertaken an English language test, but realised at around the time he completed his visa application that he was unable to rely on that test as evidence of his English competency because it did not fall within the specified period.  He said he made arrangements to sit another English language test – which took place shortly after he had lodged his visa application - and hoped that could be used in support of his visa application.

11. The Tribunal explained that the law requires the applicant to have already taken an English language test by the time he made his visa application.  The Tribunal explained that it does not have any discretion to waive this requirement.

12. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS Test - and achieved the specified score.  However, it notes the test was undertaken after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made.  The Tribunal is therefore not satisfied the visa 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.

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

14. 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

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

    Nicola Findson
    Member