Ng (Migration)

[2020] AATA 2602

Ng (Migration) [2020] AATA 2602 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Suet Yin Ng

CASE NUMBER:  1914612

DIBP REFERENCE(S):  BCC2019/1271944

MEMBER:Warren Stooke AM

DATE:23 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2020 at 1:32pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – unable to book specified test because of coronavirus restrictions – regulations require test before application – 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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 March 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.

3. The delegate refused the visa on 22 May 2019 because the applicant did not have the required English language proficiency.

4. On 3 June 2020, the Tribunal invited the applicant to attend a telephone hearing before the Tribunal at 3.00pm on 23 June 2020.

5. On 22 June 2020, the applicant’s representative informed the Tribunal that the applicant had made a request for the Tribunal to determine the applicant’s application, without a hearing. In this regard, the applicant submitted a signed response to the Tribunal confirming that she was seeking for her application to be determined without a hearing.

6. On 23 June 2020, the Tribunal acknowledged the applicant’s response and the request that the application be determined without attendance at a hearing and the Tribunal cancelled the hearing.

7. The applicant was represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)).

10. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 of the Register of Instruments - Skilled visas. 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).

11. On the 10 June 2020, the representative for the applicant sought an adjournment of the proposed hearing schedule on 23 June 2020, based on the following:

    “Dear registrar,

    I am writing on behalf of our client, Ms. Suet Yin NG ( ref # 1914612), in regard to her invitation to attend a hearing scheduled on 23rd of June 2020.

    The department of home affairs refused our clients application for a 485 graduate visa on the basis that she did not meet clause 485.212 of the migration regulations. The clause indicates that an applicant must reach a "competent" score on an approved test. The applicant has intended to take such a test from early this year. However, as a result of the unforeseen circumstances of the COVID-19 pandemic, our client, and many like her have been unable to book such a test for months. The applicant has endeavored to find a test before the hearing date, however, the earliest test that has become available within the confines of the social distancing measures is in July.

    We kindly request that the member consider postponing or rescheduling the hearing until the applicant can take the test as she has been diligently studying to achieve the necessary score for some months now. furthermore, it is reasonable to note that the applicant was unable to book the test within the appropriate amount of time as a result of variables completely out of her control.

    we highly appreciate the members' understanding and compassion in these uncertain times.”

12. On 11 June 2020, the Tribunal corresponded with the representative concerning the request for a postponement, that included text as follows:

    “On 3 June 2020 we sent a letter inviting you to attend a hearing on 23 June 2020 to give evidence and present arguments relating to the issues arising in your case.

    On 10 June 2020 we received a request that the hearing be postponed. The Member has considered the request carefully but has decided not to postpone the hearing.

    The Member has advised that it is noted that the applicant applied for the 485 visa on 13 March 2019 and that the decision of the delegate was advised on 22 May 2019. The Tribunal notes that these dates do not coincide with the pandemic from January 2020.

    The regulations require an English language test to be completed prior to application and therefore would not be effected by the pandemic as the applicant applied on 13 March 2019. Therefore, it is available to the applicant to submit the results of an English language test taken prior to 13 March 2019 for the consideration of the Tribunal.

    As such, the Tribunal intends to proceed with the hearing as advised to the applicant.

    The hearing will therefore proceed as set out below. Please note that all details about the hearing, as set out in the hearing invitation letter dated 3 June 2020 still apply.”

13. The Tribunal is satisfied that having reviewed the applicant’s application that the applicant has not submitted evidence to the Tribunal that she satisfactorily completed an approved English language test as prescribed in cl.485.212. In this regard, correspondence from the applicant’s representative confirmed that the applicant was currently seeking to undertake an English language test and had been prevented from doing so, because of the COVID 19 pandemic. The Tribunal finds in these circumstances that the applicant has confirmed that she has not undertaken the required English language test that was to be submitted with her application, other than the test result submitted for a PTE Test Taker Score Report of 27 February 2019, where an overall test score of 48. As such, this score does not satisfy 485.212(a)(ii).

14. Further, the applicant advised ‘Yes’ to the question in the application submitted to the Department, which states: ‘Do you hold a current passport from USA, UK, Canada, New Zealand, or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English’. In this regard, the Tribunal notes that the applicant holds a passport from Hong Kong, Special Region, Peoples Republic of China, which was issued on 15 May 2014. [Department File: CLD2019/15615583]

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

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 applicant a Skilled (Provisional) (Class VC) visa.

    Warren Stooke AM
    Member