Liaquat (Migration)

[2019] AATA 731

Liaquat (Migration) [2019] AATA 731 (9 April 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ikram Liaquat

CASE NUMBER:  1835211

DIBP REFERENCE(S):  BCC2018/2862308

MEMBER:Jennifer Cripps Watts

DATE:9 April 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 April 2019 at 2:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 –  IELTS test –   applicant did not meet required English language proficiency – applicant did not hold passport of type specified – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65

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

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 (the delegate) 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 31 July 2018. 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 16 November 2018 because the applicant did not have the required English language proficiency.

4. The applicant attended the scheduled hearing on 9 April 2019 to give oral evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. 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).

8. The requirements of cl.485.212(a) were explained in detail to the applicant at the beginning of the hearing.  He was invited to ask questions about the information or anything that was said in the introduction to the hearing, but indicated he did not have any questions.  The Tribunal is satisfied that the applicant understood the requirements for meeting the English language requirements and that he has been given an opportunity to provide any evidence he wished to in support of the review application.

9. In the Subclass 485 Post-Study Work stream visa application lodged on 31 July 2018, the applicant answered a question on the online form indicating he had undertaken an English language test.  The applicant’s visa application was accompanied by an International English Language Test System (IELTS) report showing that he had taken the test on 4 June 2016 and had achieved an overall score of 5.5 and individual scores in listening, reading, writing and speaking of 6.0, 4.5, 5.5 and 6.0 respectively.  For the purposes of meeting the English language requirement for the Subclass 485 visa, an IELTS test requires a minimum overall score of 6.0, with a minimum in each component of 5.0.  In the English language test that accompanied the visa application, the applicant did not achieve the minimum in all the four individual components in the test taken on 4 June 2016.  He confirmed at the hearing that at the time he made the application he knew he did not have a test meeting the minimum English language requirements, but says that he was misguided by information he received from someone at the Department.

10. The applicant’s student visa was due to cease and he said that he knew that if he wanted to apply for a Subclass 485 visa he needed to apply for it onshore while he still held the student visa.  The applicant said that on 28 or 29 July 2018, he phoned the Department and spoke to a woman who gave him advice about how to answer the question relating to the English language requirement in his Subclass 485 visa application.  The applicant explained that the reason he said ‘yes’ to having done the test in the visa application was because this is what the woman at the Department told him to do, on the basis that he already had an IELTS test.

11. The applicant said he was aware he did not satisfy the English language requirement with the 4 June 2016 IELTS test when he applied for the visa and, but for the advice he got from the person at the Department, he would not have made the 485 application and would have looked into applying for a different visa where he could be sure he would meet the criteria.  He was asked what he would have applied for and said probably a student visa, to do a different course.

12. At the hearing the applicant offered to provide the phone number for the person he spoke to at the Department who gave him advice about filling in the visa application.  The Tribunal told him that it would accept that he spoke to someone at the Department before lodging his visa application.  The Tribunal’s view is that an applicant may obtain advice from and rely on whatever information they choose to when lodging a visa application 

13. While the Tribunal accepts that the applicant had a conversation with someone at the Department, the fact remains that the applicant did not satisfy the English language requirement at the time he applied for the Subclass 485 visa that is the subject of this review.

14. After the visa application, but prior to the visa refusal on 16 November 2018, the applicant provided evidence of a Pearson Test of English (PTE) Academic Report showing that he took the test on 20 September 2018 and achieved an overall score of 52, with individual scores in listening, reading, speaking and writing or 47, 61, 61 and 48 respectively.  The test was issued on the same day.  A PTE language test requires a minimum overall score of 50, with a minimum score of 36 in each of the individual components.  The applicant has achieved this according to the results recorded on the PTE report he took on 20 September 2018.  However, cl.485.212(a) requires that the English language test be taken in the 36 months prior to lodging the visa application.  The PTE test was taken about a month and a half after the visa application was made. 

15. The Tribunal has taken all relevant matters into account when reaching a decision.  Clause 485.212 is a mandatory requirement.  It must be satisfied at the time of application.  The Tribunal has no discretion to waive the requirement.

16. For the reasons given above, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

17. 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

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

    Jennifer Cripps Watts
    Member