Ng'ang'a (Migration)

[2021] AATA 3118

Ng'ang'a (Migration) [2021] AATA 3118 (22 July 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Virginia Wanjiku Ng'ang'a

CASE NUMBER:  1931341

HOME AFFAIRS REFERENCE(S):          BCC2019/480687

MEMBER:Nicola Findson

DATE:22 July 2021

PLACE OF DECISION:  Perth

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

Statement made on 22 July 2021 at 10:36am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – 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

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 22 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 (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 12 October 2019, because the applicant did not meet the English language requirements.

4. The applicant appeared before the Tribunal on 12 May 202, to give evidence and present arguments.

5. 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 in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI15/062.

9. The applicant is a citizen of Kenya. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  The decision records that in her visa application the applicant indicated that she had not undertaken an English language test within the last 36 months.  As there was no evidence before the delegate that the applicant had undertaken a specified test in the three-year period ending immediately prior to the day on which she lodged her visa application, the delegate found that she did not meet cl.485.212(a). 

11. At the time of making her review application, the applicant provided to the Tribunal a copy of an IELTS Test Report Form recording that she had undertaken an IELTS test on 12 October 2019 and achieved 6.5 for listening, 6.0 for reading, 6.5 for writing, 8.5 for speaking, and an overall band score of 7.0.  The Tribunal notes that this test was undertaken after the visa application was lodged.

12. The applicant also provided a written submission to the Tribunal during the review process. In that submission the applicant sets out the circumstances which led to her not meeting the English language requirement.  She claims that she became aware of the English language requirement once she commenced the application process.  She states that as soon as it was practical for her to do so, she made arrangements to sit an IELTS test.  The applicant sets out in her submission that getting a spot in a test class within a reasonable time frame was a challenge, and the earliest date she could undertake the test was on 12 October 2019.  She states that she remained optimistic about getting the best results and being able to submit those results before her application was assessed by the Department.  She states she received her test results on 23 October 2019, after she was notified of the visa refusal decision.  The applicant states that in her application she strived to demonstrate transparency and exercise honesty in the information provided “as truthful as a reflection of the kind of person that I am”.  

13. At the hearing the Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirements the applicant had to provide evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made. The Tribunal explained that it does not have any discretion to waive the requirement that the applicant meets cl.485.212 and the specifications set out in the relevant instrument.  The applicant indicated that she understood the requirements for the visa.

14. On the evidence before it, the Tribunal accepts that the applicant has undertaken a language test specified in an instrument - an IELTS test - and exceeded the scores specified.  However, it notes the test was undertaken after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made.  The Tribunal is therefore not satisfied the visa 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.

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

16. 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

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

    Nicola Findson
    Member