Kumar (Migration) - [2019] AATA 4610

Kumar (Migration) [2019] AATA 4610 (21 October 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Jaineet Kritesh Kumar
CASE NUMBER:  1913893
DIBP REFERENCE(S):  BCC2019/1251213
MEMBER:Bridget Cullen
DATE:21 October 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 21 October 2019 at 6:03pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – minimum required score – subsequent test not completed within relevant timeframe – ‘time of application’ criteria – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212
CASES
Baig & Ors v MIBP [2018] FCCA 2986
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 12 March 2019. 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.
The delegate refused the visa on 14 May 2019 because the applicant did not have the required English language proficiency.
The applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
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).
On 12 March 2019, when the applicant applied for the visa, he submitted an IELTS Test Taker Score Report, indicating that he had achieved an overall score of 5.5. The Applicant, by virtue of having taken the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 4610
Decision Date: 21 October 2019

CaseChat Overview and Summary

This matter concerned an application for review of a decision to refuse a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The applicant sought to challenge the delegate's decision that he did not meet the English language proficiency requirements for the visa. The review was heard by Bridget Cullen, a Member of the Tribunal.

The primary legal issue before the Tribunal was whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires that an application for a Subclass 485 visa be accompanied by evidence of having undertaken a specified language test, achieved the specified score within a specified period, and met any specified requirements. Alternatively, the applicant could satisfy the clause by holding a passport of a specified type.

The Tribunal reasoned that the applicant did not meet the alternative criterion under clause 485.212(b) as he did not hold a specified type of passport. Therefore, he was required to satisfy clause 485.212(a). At the time of application on 12 March 2019, the applicant submitted an IELTS Test Taker Score Report showing an overall score of 5.5, which was below the minimum required score of 6. While the applicant later submitted a Pearson PTE Academic Test Taker Score Report dated 11 June 2019 with a score of 53 (above the minimum of 50), the Tribunal determined that this subsequent test did not satisfy the requirement that the test be completed within the relevant timeframe specified in IMMI 15/062. The Tribunal indicated that clause 485.212(a) was a "time of application" criterion, and the applicant confirmed he had not completed any other English tests within the specified period.

Consequently, the Tribunal concluded that the applicant did not meet the requirements of clause 485.212 and therefore did not satisfy the criteria for the grant of a Subclass 485 visa. The decision under review was affirmed.

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 decision under review should be affirmed.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). On 12 March 2019, when the applicant applied for the visa, he submitted an IELTS Test Taker Score Report, indicating that he had achieved an overall score of 5.5. The Applicant, by virtue of having taken the test through IELTS, was required to achieve a minimum overall score of 6. This formed the basis of the refusal by the delegate. In his Statutory Declaration dated 23 July 2019, the applicant explains that he mistakenly believed that he passed the IELTS test. He says that he scanned the test results, and saw that he had achieved a pass in all four components, and forgot to look at the overall score which was not at the score specified. He completed the visa application himself, without the benefit of professional assistance. With lodgement of the applicant’s application for review of the decision, the applicant submitted a Pearson PTE Academic Test Taker Score Report, taken on 11 June 2019, with an overall score of 53. The minimum overall score for the PTE test is 50 (IMMI 15/062). The applicant, and his representative arrived for the hearing clearly believing that having now completed the PTE Test with a result higher than the minimum overall score, that the Tribunal would now simply remit the matter to the Department. The applicant, and his representative, do not appear to have appreciated the need to also complete the test in the relevant timeframe. The Tribunal asked the applicant whether he had completed any other English tests within the period specified in the instrument. He confirmed that he had only completed the two English tests mentioned above. The Tribunal provided the applicant a period of time following the hearing to make additional submissions, as the Tribunal had flagged that its initial view was that cl.485.212(a) was a “time of application” criterion. The Tribunal explained that it would consider any further submissions the applicant made, particularly in relation to the interpretation of the law. Specifically, the Tribunal flagged that the issue before it was whether the applicant’s second language test (PTE Academic, test date 11 June 2019) could satisfy the requirement in cl.485.212.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visas.Bridget CullenMember

Ratio Decidendi

Legal Principle Established

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