Kwong (Migration)

[2017] AATA 1876

Kwong (Migration) [2017] AATA 1876 (13 October 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Hoi Ying Kwong

CASE NUMBER:  1721825

DIBP REFERENCE(S):  BCC2017/2846433

MEMBER:Saxon Rice

DATE:13 October 2017

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.212(b) of Schedule 2 to the Regulations.

Statement made on 13 October 2017 at 8:59am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Applicant holds a passport of a type specified by the Minister

LEGISLATION
Migration Act 1958, s 65

Migration Regulations 1994, Schedule 2, cl 485.212(b)

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 9 August 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 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 14 September 2017 because the applicant did not have the required English language proficiency.

4. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl.485.212 of the Regulations. An applicant satisfies this requirement if the visa application was accompanied by evidence that the applicant holds a passport of a type specified by the Minister. They include a passport of the United Kingdom (UK): Legislative Instrument IMMI 15/062.

2. On 17 September 2017, the applicant provided a submission to the Tribunal outlining her claims to meet all requirements necessary for the grant of a VC 485 visa. In particular, the applicant outlined that she is the holder of a passport from the UK and therefore, satisfies the requirements of cl.485.212(b) of the Regulations. While the applicant acknowledges that she inadvertently did not provide a copy of her UK passport to the Department with her application, a copy of her UK passport was provided to the Tribunal when the applicant lodged her review.

3. As the application was accompanied by evidence that the applicant held a specified passport, the applicant satisfies cl.485.212(b). The matter will be remitted to the Minister for reconsideration accordingly.

DECISION

1. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   · cl.485.212(b) of Schedule 2 to the Regulations.

Saxon Rice
Member