Muparadzi (Migration) - [2020] AATA 3176

Muparadzi (Migration) [2020] AATA 3176 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kudakwashe Chandafira Muparadzi
CASE NUMBER:  1930783
DIBP REFERENCE(S):  BCC2019/4199876
MEMBER:Simone Burford
DATE:9 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 09 June 2020 at 11:08am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – English test was not undertaken within the prescribed period – English language proficiency requirement not met – English test was undertaken after visa application was lodged – no discretion to waive English requirement –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

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 applicant applied for the visa on 23 August 2019. 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.
The delegate refused the visa on 14 October 2019 because the applicant did not have the required English language proficiency. The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.
The applicant appeared before the Tribunal on 4 June 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns regarding the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] AATA 3176
Decision Date: 9 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the application of Muparadzi concerning a Skilled (Provisional) (Class VC) visa, specifically the Subclass 485 (Temporary Graduate) visa. The applicant sought review of a decision that they had not met the English language proficiency requirement for the visa.

The primary legal issue before the Tribunal was whether the applicant had satisfied the English language proficiency requirement as prescribed by the *Migration Regulations 1994* (Cth). This involved determining whether the English language test had been undertaken within the period stipulated by the regulations and, if not, whether there was any discretion to waive this requirement.

The Tribunal found that the applicant had not undertaken the required English language test within the prescribed period, which was prior to the lodging of the visa application. As the regulations did not provide for any discretion to waive this specific requirement, the applicant's failure to meet it meant they were not eligible for the visa. Consequently, the Tribunal affirmed the original decision.

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