Lipski (Migration)

[2020] AATA 3726

Lipski (Migration) [2020] AATA 3726 (1 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Marcin Adam Lipski

CASE NUMBER:  1827756

DIBP REFERENCE(S):  BCC2018/2919902

MEMBER:Kira Raif

DATE:1 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 July 2020 at 8:04am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – completing English exam prior to application – relevant passport – 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 3 August 2018. The delegate refused the visa on 4 September 2018 because the applicant did not have the required English language proficiency. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal by teleconference on 29 June 2020 to give evidence and present arguments. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   Relevant law

4. 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).

5. 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)).

   Does the applicant have the proficiency in English?

6. There is no evidence, and the applicant does not claim, that he holds a passport of a type specified by the Minister in an instrument. The Tribunal is not satisfied the applicant meets cl. 485.212(b).

7. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that the applicant stated ‘no’ on the application form in response to the question concerning English testing. The applicant had not presented with his application evidence of having undertaken a language test.

8. The applicant provided additional evidence to the Tribunal, which included evidence of his past study in Australia and overseas, and other material. In relation to his English proficiency, the applicant presented evidence indicating that he has completed an Academic IELTS test on 11 September 2018, with the overall score of 8.5.

9. The applicant stated in oral evidence that he did specify ‘no’ on the application form in relation to undertaking the test but he assumed that because he had completed his qualifications in Australia and had been living and studying in Australia for a number of years, there was no rational basis for him to undertake another language test. The applicant noted that the visa is designed for those who have already completed study in Australia and it is discriminatory to require applicants to undertake additional language testing. The applicant expressed his concerns about the legal requirements and the processing of his application, noting that if he could not meet the requirements, he should have been informed of this and his application should not have been accepted. The applicant states that it is a ‘scam’ to make more money from the applicants to have his application accepted and to require him to undertake a language test. The Tribunal acknowledges the applicant’s concerns but has no discretion to waive the statutory criteria.

10. The applicant also notes that in addition to his study, he has completed the test within a week which shows that he did not need any preparation and that his English was sufficient when the application was made. While that may be the case, the Tribunal notes that  the requirement is for the application to be accompanied by the relevant evidence, not for such evidence to become available after the application is made, even if there is only a short delay.

11. The Tribunal accepts that the applicant had achieved the requisite score, however, the presented evidence shows that the language test was completed after the application was made. The Tribunal also accepts the applicant’s evidence that he was required to complete a language test to undertake study in Australia.  However, there is no evidence that the application was accompanied by evidence of the relevant test.

12. The Tribunal is not satisfied that the application was accompanied by evidence that the applicant had undertaken a requisite test. The applicant does not meet cl. 485.212(a) and cl. 485.212.

    Conclusion

13. 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

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

    Kira Raif
    Senior Member