Macabagdal (Migration)

[2023] AATA 2044

Macabagdal (Migration) [2023] AATA 2044 (21 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Clarice Sebastian Macabagdal

REPRESENTATIVE:  Ms Ashrita Zeeshan

CASE NUMBER:  2306513

HOME AFFAIRS REFERENCE(S):          BCC2023/1527572

MEMBER:R. Skaros

DATE:21 June 2023

PLACE OF DECISION:  Sydney

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 of Schedule 2 to the Regulations.

Statement made on 21 June 2023 at 1:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – Pearson Test of English Academic (PTE Academic) undertaken – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 5 March 2023. 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 (Cth) (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 8 May 2023 because the delegate was not satisfied that the applicant had the required English language proficiency.

4. The Tribunal has before it evidence which indicates that the applicant had sat the required test, within the prescribed period, and had achieved the required score.

1. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

1. 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. Clause 485.212(1) 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(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. In this case, the applicant does not meet the requirements of cl 485.232 or 485.233, and they have not held a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream when the application for the current visa was made. As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) does apply.

4. 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(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).

5. In this case, the applicant had undertaken a Pearson Test of English Academic (PTE Academic) on 13 February 2023, being within the three years before the visa application was made, in which she achieved the following scores: Overall score of 64; Listening 59, Reading 67; Writing 65 and Speaking 66. The test date and results have been verified by the Tribunal. 

6. The Tribunal accepts the applicant’s explanation that she had sought the assistance of a person who mistakenly indicated ‘no’ to have undertaken an IELTS test. The Tribunal accepts that this was an inadvertent error on the part of the applicant and/or the person assisting her, as the evidence subsequently provided by the applicant clearly demonstrates that she had sat the required English language test, within the specified period and had achieved the required scores. 

7. Accordingly, the Tribunal is satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

8. 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 of Schedule 2 to the Regulations.

R. Skaros
Senior Member