Ndebele (Migration)

[2018] AATA 1467

Ndebele (Migration) [2018] AATA 1467 (8 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thembelihle Ndebele
Mr Trevor Mkhululi Ndebele

CASE NUMBER:  1808875

DIBP REFERENCE(S):  BCC2018/755443

MEMBER:Amanda Mendes Da Costa

DATE:8 May 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 08 May 2018 at 1:18pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – Applicant did not realise that she needed to complete an English language test – IELTS test taken after the date of the application – Decision affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 14 February 2018. 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.

3. The delegate refused the visas on 14 March 2018 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 4 May 2018 to give evidence and present arguments.  The Tribunal also considered the written submissions dated 30 March 2018, which were provided by the applicant to the Tribunal.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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 instrument, the score specified, in accordance with any specified requirements (cl.485.212(a)); or

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

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

8. The Tribunal notes that IMMI 15/062 specifies English language tests for the purposes of cl.485.212 and further specifies that those English tests ‘must have been undertaken within the three years before the day on which the application is made’.

9. The Tribunal finds that the specification in the instrument created a three year period in which any specified English language test could be undertaken the results of which could be used to satisfy cl.485.212, and that the period ended with the arrival of the day on which the visa application was made: 14 February 2018 (the three year period).

10. In her oral evidence, the applicant acknowledged that she did not hold a passport of the specified type. She told the Tribunal that when lodging the application she had not realised that she was required to undertake a specified English test within the three years immediately preceding the application.  She explained that given she had previously studied in the United States of America and had successfully completed doctoral studies at the University of Melbourne, she incorrectly assumed that she would meet the English language requirements.  When the applicant became aware that she would be required to undertake a specified English test, she made arrangements to do as quickly as possible.  The Tribunal notes that the applicant undertook an IELTS test on 3 March 2018 and that she received an overall score of 8.5, which is above the required minimum score.  However, the Tribunal is not satisfied that this test was undertaken as required within the three years before the day on which the application was made.

11. Accordingly the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212 (a).

12. 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.

13. As the applicant does not meet the primary criteria for the granting of the visa, the secondary applicant does not meet cl.485.311.

    DECISION

14. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Amanda Mendes Da Costa
    Member