Nareddula (Migration)

[2023] AATA 929

Nareddula (Migration) [2023] AATA 929 (22 February 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sai Abhishek Reddy Nareddula

REPRESENTATIVE:  Mr Raja Ramesh Reddy (MARN: 1804195)

CASE NUMBER:  2205240

HOME AFFAIRS REFERENCE(S):          BCC2021/1550294

MEMBER:Alison Mercer

DATE:22 February 2023

PLACE OF DECISION:  Melbourne

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

Statement made on 22 February 2023 at 11:59am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IMMI 15/062 – Pearson Test of English (PTE) – undertaken after visa application date – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 9 August 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.

3. The delegate refused the visa on 23 March 2022 because the applicant did not have the required English language proficiency. The delegate noted that the applicant had stated in his online visa application that he had not undertaken an English language test in the 3 years prior to making his subclass 485 visa application, and was not exempt from having to do so. The delegate therefore found that the applicant did not meet cl.485.212 and had not made any claims to meet any other stream.

4. The Tribunal received a review application on 8 April 2022. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent, Mr Raja Ramesh Reddy, as his representative and authorised recipient for correspondence.  It was also accompanied by a copy of the applicant’s passport, overseas health cover, a booking for a Pearson Test of English (PTE) scheduled for 2 September 2021 with a subsequent notification from the PTE test administrators cancelling this test on 18 August 2022, and a PTE test result form for the applicant indicating that he obtained an overall score of 59, with scores of 54 for listening, 64 for reading, 66 for speaking and 54 for writing) in a test that he undertook on 13 December 2021.

5. On 12 January 2023, the Tribunal wrote to the applicant via his agent to invite the applicant to a hearing on 21 February 2023. He was requested to provide any additional material to support his case by 14 February 2023.

6. The applicant did not attend the hearing on 21 February 2023, and the Tribunal has received no further information from him to date. The Tribunal considered whether to defer making its decision, but given the confined nature of the criterion in dispute, it determined that it was appropriate to proceed to a decision without deferring for a further period.

7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF LAW, 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. Clauses 485.232 and 485.233 both apply only to applicants applying for a second subclass 485 visa. The Tribunal is satisfied, having reviewed the Department’s records, that the applicant has not previously held a subclass 485 visa, and thus cannot meet the requirements of cl.485.232 or 485.233. He must therefore meet cl.485.212(1).

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, being passports issued by the US, UK, Canada, New Zealand or the Republic of Ireland (the applicant holds an Indian passport), and therefore cl 485.212(1)(b) is not met.

5. As such the applicant must meet cl 485.212(1)(a).

6. For a PTE test, item 4 of IMMI 15/062 provides that it must have been undertaken within 3 years before the day on which the applicant made his visa application. Item 3 provides that the required scores for a PTE test are an overall score of 50, with scores of at least 36 in each of the 4 test components (speaking, writing, listening and reading).

7. The Tribunal acknowledges that the applicant provided to the Tribunal a PTE test result form indicating that he obtained an overall score of 59, with scores of 54 for listening, 64 for reading, 66 for speaking and 54 for writing) in a test that he undertook on 13 December 2021. However, this test was undertaken after he made his subclass 485 visa application on 9 August 2021, and cannot be used to satisfy cl.485.212(1).

8. 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

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

Alison Mercer
Member