Mohammed Hunais (Migration)

[2020] AATA 3796

Mohammed Hunais (Migration) [2020] AATA 3796 (24 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mohammed Shukry Mohammed Hunais

CASE NUMBER:  1926790

DIBP REFERENCE(S):  BCC2019/3607164

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         24 June 2020 at 2:08 pm (VIC time)

DATE OF WRITTEN RECORD:                7 July 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 07 July 2020 at 4:23pm

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 3 September 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 24 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Mohammed Hunais, you travelled on a Sri Lankan passport which shows, and you’ve told the Tribunal today that your date of birth is 1 June 1995, so you are a 25 year-old. 

4. On 20 July 2019 you applied for a 485 Temporary Graduate visa in the graduate workstream.

5. In completing your application, you said that in the past three years you had undertaken an English language test.  However, the delegate was not satisfied you met the requirements for the grant of a visa and so refused your application. 

6. You appealed that decision to be reviewed by this Tribunal.  With your application you included a copy of the final decision and you told the Tribunal you had read and understood that decision which we discussed today and I read from it in some detail and it was obvious that you did understand why your application was refused.

7. To be eligible for the grant of a 485 visa, an applicant must satisfy a number of requirements set out in the Regulations.  One of those is 485.212, which states that your application must be accompanied by evidence that you have undertaken an English test specified by the Minister and achieved a minimum score required, and that you have done the test within the three years immediately before the date of the application.

8. What you provided in support of your application was the results of an IELTS test, which is the International English Language Test System, that you sat on 29 June 2019. 

9. To satisfactorily satisfy the English language requirement for the grant of a visa, it is necessary to score a minimum of five in each of the English components of reading, writing, listening and speaking.  As you scored only 4.5 in the reading component your test result does not satisfy the requirements and that was why the decision was taken.

10. An alternative method of satisfying the requirement under 485.212(b) is to hold a specified passport, being one from the USA, UK, Canada, New Zealand or The Republic of Ireland.  You travel on a Sri Lankan passport and there is no evidence that you have one of those specified passports, so you do not satisfy 485.212(b).

11. You told the Tribunal you were aware that your application was refused because you did not meet the requirements and you said you would be looking to sit another IELTS test in an attempt to get a satisfactory score result, however due to COVID-19 the test centres are closed you say and so you have been unable to get further results.

12. However, the thing that I would say to you is that 485.212 requires that evidence of English is provided with your application.  So providing evidence of a test that you have taken after 20 July 2019 is unfortunately still not going to satisfy that requirement.

13. This is not a matter in which the Tribunal has discretion.  The English requirement is one of the mandatory requirements that must be met at the time of lodging the visa application and as previously mentioned, evidence of having satisfactorily completed the English test requirements must accompany the application.

14. As you have not provided evidence of having successfully completed an acceptable English test within the three years immediately before the day on which you lodged your application you do not satisfy Regulation 485.212(a).

15. As I said, you travel on a Sri Lankan passport and there is no evidence provided that you hold one of the specified passports, so you do not satisfy 485.212(b). 

16. Therefore as clause 485.212 is not met I find the criteria for the grant of a subclass 485 Temporary Graduate visa are not met and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

17. The Tribunal affirms the decision under review.

    Tim Connellan
    Member