LEE (Migration)

[2018] AATA 1790

LEE (Migration) [2018] AATA 1790 (1 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Wei Qi Joline LEE

CASE NUMBER:  1718038

DIBP REFERENCE(S):  BCC2017/2479423

MEMBER:Denise Connolly

DATE:1 May 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 01 May 2018 at 10:28am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IELTS test score – Test not completed within relevant period – 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 12 July 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 25 July 2017 because the 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 her 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 Singapore. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore 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 the visa application on 12 July 2017 the applicant declared that she had not undertaken an English test within the last 36 months. As there was no evidence before the delegate that the applicant had undertaken a specified test in the three-year period ending immediately prior to the day on which she lodged her visa application, the delegate found that she did not meet cl.485.212.

11. The applicant’s representative has lodged a written submission asserting that the applicant’s first language is English. She undertook her study in Australia in English, including at Murdoch University at a higher education level. She thought therefore the English language test was not applicable to her situation.  After receiving the notification of her visa application refusal, the applicant rectified her mistake by taking an IELTS test in which she achieved an overall score of 8.0. The applicant provided to the Tribunal a copy of an IELTS Test Report Form recording that the applicant undertook an IELTS test on 12 August 2017 and achieved 9.0 for listening, 8.0 for reading, 6.0 for writing, 8.0 for speaking and an overall band score of 8.0. The Tribunal notes that this test was undertaken after the visa application was lodged.

12. At the hearing the Tribunal explained to the applicant the requirements of cl.485.212. The applicant has provided to the Tribunal evidence relating to her various qualifications achieved in Australia in English, including her Bachelor of Commerce from Murdoch University. The Tribunal explained that it does not assess her English; its role is to consider whether her application was accompanied by evidence that she had undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.

13. The Tribunal accepts the applicant has studied in English at the tertiary level. It accepts that the applicant has undertaken a specified English language test, an IELTS test, and achieved the score specified. 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.

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

15. 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

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

    Denise Connolly
    Member