Leung (Migration)

[2017] AATA 2262

Leung (Migration) [2017] AATA 2262 (1 November 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Chung Yan Sharon Leung

CASE NUMBER:  1711359

DIBP REFERENCE(S):  BCC2017/961671

MEMBER:Bridget Cullen

DATE:1 November 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(a) of Schedule 2 to the Regulations.

Statement made on 01 November 2017 at 1:48pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – Graduate Work stream – English language proficiency – Occupational English Test results provided

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 11 March 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 25 May 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 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)).

2. 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).

3. IMMI 15/062 specifies for subparagraph 485.212(a)(ii) of the Regulations the following minimum required overall test score and the minimum required scores for each of the test components:

English test	Minimum overall Score	Total overall score	Minimum scores for English test components
			Listening	Reading	Speaking	Writing
IELTS	6	-	5	5	5	5
OET	B	-	B	B	B	B
TOEFL iBT	-	64	4	4	14	14
PTE Academic	50	-	36	36	36	36
Cambridge English: Advanced (CAE) (taken on or after 1 January 2015)	169	-	154	154	154	154

1. The applicant has provided the Tribunal with a certified copy of her Occupational English Test (“OET”) results. These results indicate that the applicant undertook the test on 10 June 2017, and attained a level of B in each of Listening, Reading, Speaking and Writing. The Tribunal is satisfied that the applicant’s evidence meets cl.485.212(a).

2. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

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(a) of Schedule 2 to the Regulations.

Bridget Cullen
Member