Nguyen (Migration)

[2021] AATA 1589

Nguyen (Migration) [2021] AATA 1589 (17 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Thi Thu Hien Nguyen
Mr Anh Dung Nguyen
Ms Chloe Viet Ha Nguyen

CASE NUMBER:  1910535

HOME AFFAIRS REFERENCE(S):          BCC2018/6063182

MEMBER:Wan Shum

DATE:17 May 2021

PLACE OF DECISION:  Sydney

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.212 of Schedule 2 to the Regulations.

Statement made on 17 May 2021 at 2:25pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) –post-work stream – English language proficiency – results of specified test provided to tribunal – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)

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 applicants Skilled (Provisional) (Class VC) Subclass 485 visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the Subclass 485 visas on 9 January 2019. 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), which sets out common criteria and specific criteria relevant to the stream selected. 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. In this case, the first named applicant is seeking to meet the criteria in the Post-Study Work stream.

3. The delegate refused the visas on 17 April 2019 because the first named applicant (the applicant) did not have the required English language proficiency.

4. On review, the Tribunal was provided with evidence that the applicant had the required English language proficiency and has proceeded to a decision without the need for a hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. 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)).

6. 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).

7. On the visa application form, the applicant provided details of having completed a PTE Academic test on 12 August 2018 and provided reference number 330902374.

8. However, the Pearson PTE test results were not provided to the Department despite a request for evidence that she met the English language requirements. On review, a copy of the Pearson PTE test taken on 12 August 2018 was provided. The Tribunal has verified the results for this test and finds that the test was taken within the three years before the application and meets the requirements specified in IMMI 15/062 paragraph 3, as she achieved more than 36 in each of the test bands and an overall band score of 62.

9. On the basis of the results of the 12 August 2018 test which was provided on review, the Tribunal finds that the applicant has undertaken a specified language test and has achieved, within the three-year period specified in the instrument, the specified score for that test.

10. Given the details were provided at the time the application was made and having regard to the subsequent evidence of the test results, the Tribunal is satisfied that the application was accompanied by evidence that the applicant meets cl 485.212(a).

11. On the basis of the above, the applicant meets the requirements of cl 485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

12. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

    · cl 485.212 of Schedule 2 to the Regulations.

    Wan Shum
    Member