Mohammed (Migration)
[2024] ARTA 842
•26 November 2024
Mohammed (Migration) [2024] ARTA 842 (26 November 2024)
Decision and
Reasons for Decision
Applicant: Mr Talhauddin Mohammed
Respondent: Minister for Home Affairs
Tribunal Number: 2211982
Tribunal: General Member G Hallwood
Place: Adelaide Registry
Date: 26 November 2024
Decision:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 26 November 2024 at 3:56pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – applicant completed university studies in Australia – impact of the COVID-19 pandemic on English testing - test within 3 years before the vias application – decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233
CASES
Baig v MIBP [2018] FCCA 2986
George v MICMSMA [2020] FCCA 2161
STATEMENT OF REASONS
APPLICATION FOR REVIEW
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).
The applicant, a 29-year-old national of the Republic of India, applied for the visa on 21 October 2021. 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.
The delegate refused the visa on 29 July 2022 because they were not satisfied that the applicant had the required English language proficiency.
The applicant appeared before the Tribunal on 19 November 2024 to give evidence and present arguments.
The applicant was represented in relation to the review although the representative did not attend the hearing.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)).
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). Relevantly, for applications made on or after 20 January 2021 but before 1 July 2022, the applicant:
has not previously held a primary Subclass 476 visa granted on the basis that the applicant satisfied the primary criteria;
has not previously held a Subclass 485 visa in the Graduate Work stream;
unless the applicant has nominated the Post-Study Work stream in the application and meets the requirements of cl 485.232 or 485.233, has not held a Subclass 485 visa in the Post-Study Work stream;
has not previously held 2 Subclass 485 visas in the Post-Study Work stream.[1]
[1] cl 485.211(a) substituted by SLI 2013, No 33 and cls 485.211(b), 485.211(c), 485.211(d) substituted by F2020L01639.
Departmental records show, and it is not disputed by the applicant, that the applicant has not previously held a subclass 476 Skilled – Recognised Graduate visa; nor has the applicant previously held a subclass 485 visa. These clauses apply in circumstances where the applicant’s visa is a subsequent subclass 485 visa. This is not such a circumstance. As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) applies.
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 English Language Tests, Scores and Passports 2015. In the present case, there is no evidence that the applicant has held a passport of a type specified (the United Kingdom, the United States of America, Canada, New Zealand, or the Republic of Ireland, and as such cl 485.212(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).
The instrument requires that, for subparagraph 485.212(a)(ii) of the Regulations that one of the specified language tests must have been undertaken within the three years before the day on which the application was made.
The applicant told the Tribunal that prior to studying in Australia he satisfactorily completed an English test, probably in June 2018. That test was not in the three years before the day on which his application was made as its value to this application would have expired in June 2021 just four months before he lodged this visa application.
The Tribunal notes the applicant’s evidence that he successfully completed his studies in Australia on 3 September 2021: Master of Business Administration (MBA) and Global Project Management from Torrens University Australia. His student visa was going to expire on 22 October 2021.
During his studies he had worked part time within the rules of his visa. During the COVID-19 pandemic he worked on the ‘front line’ as a security guard for the Victorian railways.
On 12 September 2021 the applicant was tested for COVID-19 and went into isolation and Melbourne went into lockdown restricting availability of English language testing. His visa application sought to allow the applicant to temporarily work in Australia using his qualifications relevant to an occupation Australia needs.
The applicant has provided evidence that he booked in to undertake the English language test Pearson PTE for which he received acknowledgement on 17 October 2021. His appointment to undertake the test was for 16 December 2021. The applicant provided evidence that the English language testing was disrupted during the COVID 19 pandemic and that Department of Home Affairs spokespeople had indicated in the press that they were aware of temporary testing closures, and that further time would be provided to visa applicants to meet the requirement.
On 16 December 2021 the applicant completed the Pearson PTE Academic test achieving an overall score of 56 with communicative skills scores of: 60 for Listening; 57 for Reading; 46 for Speaking; and 61 for Writing. These scores exceed the minimum required overall test score and the minimum required scores for each of the test components specified in the instrument. The Pearson PTE Academic test is also specified in the Instrument.
The Tribunal notes the applicant’s evidence that he has been offered work as a trainee telecommunication engineer to work in regional Victoria on the NBN upgrade.
It is clear in this case that the applicant had an English test that was valid up until June 2021. He had undertaken and successfully completed a Masters’ degree in English which he completed in September 2021. As a result of the pandemic and through no fault of his own, he was unable to complete the prescribed English test until December 2021 and exceeded the prescribed scores. His English skills are not in question. It is apparent to the Tribunal that this applicant is an intelligent young man that has applied himself to his study while in Australia and embraced the Australian lifestyle and culture during a trying period in history, and while away from his family and friends. He has much to offer Australia and his home country.
The Tribunal has sympathy for the situation the applicant is in. He has studied and worked in Australia since 2018 and has been one of many victims of the circumstances resulting from the COVID-19 pandemic. The Tribunal must, however, apply the law.
The Court held in Baig v MIBP that the language of IMMI 15/062 provides no scope for consideration by the Tribunal of why an English test was not undertaken within the prescribed period.[2] In George v MICMSMA it was held that the English language testing requirement could not be satisfied on the basis an applicant had booked a test prior to lodging the visa application but had not in fact taken the test.[3]
[2] Baig v MIBP [2018] FCCA 2986
[3] George v MICMSMA [2020] FCCA 2161
In this case the Tribunal finds that the applicant, while demonstrating that he successfully completed an acceptable English test, did not complete the test within the 3 years immediately before the day on which this application was made.
Therefore, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).
CONCLUDING PARAGRAPH
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
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Representative for the Applicant: Ms Vanessa De Pretis (MARN: 1388116)
Hearing dates: 19 November 2024
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