Kong (Migration)

[2018] AATA 1299

Kong (Migration) [2018] AATA 1299 (14 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Darrell Kavan Kong

CASE NUMBER:  1731216

DIBP REFERENCE(S):  BCC2017/3960220

MEMBER:Susan Trotter

DATE OF ORAL DECISION:  14 March 2018

DATE OF WRITTEN STATEMENT:         14 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 14 March 2018 at 11:15am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary graduate) – English language ability requirements – Did not sit the test within three years before the visa application – Language ability exceptions do not apply

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 26 October 2017. The completed application form indicates that the relevant subclass in this case is Subclass 485 (Temporary Graduate) (Post-Study Work), the criteria for which are set out in Part 485 of Schedule 2 to the Migration Regulations 1994 (the Regulations).

3. The delegate refused the visa on 30 November 2017 on the basis that the applicant did not met the English language ability requirement for the visa.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 11 December 2017.

5. The applicant appeared before the Tribunal on 14 March 2018 to give evidence and present arguments.

6. The Tribunal gave its decision on the review at the conclusion of the hearing held on 14 March 2018. The following are the reasons for that decision.

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

ISSUES

1. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations.

2. One criterion for grant of a Subclass 485 visa is set out in cl.485.212, which provides as follows:

485.212

The application was accompanied by evidence that:

(a)  the applicant:

(i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

(ii)has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

(b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

1. The relevant instrument specifying language tests, relevant periods, scores and passports is IMMI 15/062, which includes as follows:

(a)  The specified tests are an International English Language Test System (IELTS), a Test of English as a Foreign Language internet-based Test (TOEFL iBT), a Pearson Test of English Academic (PTE Academic), a Cambridge English: Advanced (CAE) test or an Occupational English Test (OET). (paragraph 1 of IMMI 15/062).

(b)  The language test must have been undertaken within the three years before the day on which the application was made. (paragraph 4 of IMMI 15/062).

(c)  The minimum scores as set out in paragraph 3 of IMMI 15/062.

(d)  The passports specified are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. (paragraph 6 of IMMI 15/062).

1. It follows that the issues to be determined by the Tribunal are as follows:

(a)  Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 26 October 2017 and achieved the applicable score specified in IMMI 15/062?; or

(b)  Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 – Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 26 October 2017 and achieved the applicable score specified in IMMI 15/062?

1. At the hearing on 12 March 2018, the Tribunal discussed with the applicant the requirements of cl.485.212 and provided him with a copy of that clause. The evidence before the Tribunal was that the applicant had undertaken three IELTS tests at various times, with overall scores achieved, as follows:

   Date test undertaken  Overall Score

   2 August 2014  6.0

   6 December 2014  5.5

   9 December 2017  6.5

2. The Tribunal noted that the minimum specified overall score that is required to be obtained for an IELTS test, pursuant to paragraph 3 of IMMI 15/062, is 6.0.

3. The Tribunal explained that, while the applicant previously undertook a specified test on 2 August 2014 and obtained the applicable score, the test was not taken in the three years before the visa application and therefore does not meet the requirement of having been undertaken in the period specified in the relevant instrument, that is, within the three years before the day on which the application was made.

4. Further, the Tribunal explained that, while the applicant subsequently undertook a specified test on 9 December 2017 and obtained the applicable score, the test was undertaken after the visa application and does not meet the requirement of having been undertaken in the period specified in the relevant instrument, that is, within the three years before the day on which the application was made.

5. Further still, the Tribunal also explained that although one test had been undertaken within the three year period prior to visa application, on 6 December 2014, the achieved overall score of 5.5 obtained for that test falls below the required specified overall score for an IELTS test of 6.0 such that the requirement is not met based on that test.

6. The applicant told the Tribunal that he understood that his previous studies at the University would suffice for the English requirement for the visa, as they had when he applied for a student visa. He also told the Tribunal that he had received advice from the Department that he was still within time to apply for another Subclass 485 visa and he intended to do that.

7. The Tribunal is not able to take into account evidence that might suffice for the purposes of another visa. The English language requirements for the Subclass 485 are clearly set out in the Regulations and the applicable instrument. The applicant does not meet those requirements for the purposes of his 26 October 2017 visa application. The Tribunal has no discretion to take into account studies not specified in the clause and instrument as meeting the English language requirement for this visa.

8. The Tribunal is unable on the evidence to conclude that a specified language test has been undertaken in the specified period, that is, the three years before the date of the visa application on 26 October 2017, in which the specified score was obtained.

9. The Tribunal therefore finds that cl.485.212(a)(ii) is not satisfied, and consequently cl.485.212(a) is not satisfied and the visa application was not accompanied by evidence of meeting that sub clause.

Issue 2 – Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

1. The applicant stated in the visa application, and confirmed at hearing, that he holds a Malaysian passport.

2. The applicant has provided the details of his Malaysian passport and no other. Therefore, the Tribunal finds that he does not hold a valid passport of a type specified by in IMMI 15/062, that is, a passport from either the United States of America, the United Kingdom, Canada, New Zealand or the Republic of Ireland.

3. The Tribunal therefore finds that cl.485.212(b) is not satisfied and consequently the visa application was not accompanied by evidence of meeting that sub clause.

Conclusion

1. 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

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

Susan Trotter
Member