Palakonda (Migration)

[2020] AATA 4758

Palakonda (Migration) [2020] AATA 4758 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pavan Kumar Palakonda

CASE NUMBER:  1926008

DIBP REFERENCE(S):  BCC2019/3616842

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 June 2020 at 3:35 pm (VIC time)

DATE OF WRITTEN RECORD:                19 August 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 19 August 2020 at 4:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –English test was not undertaken within the prescribed period – English language proficiency requirement not met – no discretion to waive English requirement–decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 29 August 2019 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 23 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Mr Palakonda, you travel on a passport of India.  Your said your date of birth is 15 June 1992 so you are 28 years old.  You first arrived in Australia on 26 October 2016.  On 21 July 2019, you lodged an online application for the grant of a Subclass 485 Temporary Graduate (Class VC) Post-Study Work visa. 

4. The delegate considered your application and found you did not meet the English language requirements for the grant of a visa, and you appealed that decision to be reviewed by this Tribunal.  With your review application, you included a copy of the primary decision and you told the Tribunal you had read and understood that decision, which I read from and we discussed in some detail. 

5. To be eligible for the grant of a 485 visa, an applicant must satisfy a number of requirements set out in the Regulations.  One of those is clause 485.212 of the Regulations, which states that:

   The application was accompanied by evidence that:

   (a) the applicant:

   (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

6. The relevant passports are those of the UK, USA, Canada, New Zealand or the Republic of Ireland.

7. For the purposes of paragraph 485.212(a), the Minister has specified a number of various language tests including the IELTS test and the Pearson Test of English Academic, (PTE), which is the test result that you eventually provided in support of your application. 

8. To satisfy the requirements using this method, you were required to provide evidence that you had completed a test in which you had achieved an overall band score of 50 within the three-year period before the date of your application,

9. When you filled in your application, you answered, “No”, to the question: Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland?

10. You also answered, “No”, to the question, “Have you undertaken an English test within the last 36 months?”.  However, you provided two PTE academic test total score reports.  The first was taken on 17 June 2019, in which you achieved a score of 49. 

11. The second PTE test result provided was of a test taken on 22 August 2019 in which you achieved an overall score of 50.  However, as you lodged your application on 21 July 2019, this second test was taken after you lodged your application and therefore cannot be considered. 

12. The test taken in the relevant period was the one taken on 17 July 2019 however in that test you achieved a score of 49, which is lower than the minimum required. 

13. You told the Tribunal that there was not much time between you completing the exams and having to apply for the visa.  Your father back at home had been in hospital which caused you stress and was why you were unable to concentrate. 

14. This is not a matter in which the Tribunal has discretion. The English language requirement is one of the mandatory requirements that must be met at the time of lodging the subclass 485 Post-Study Work stream visa application.

15. As you did not provide evidence of having done an acceptable English test and scoring the minimum required within the three years immediately before the day on which the application was made, your application does not satisfy regulation 485.212(a).  You hold an Indian passport and do not hold a passport specified in 485.212(b) and therefore, you do not satisfy cl.485.212(b). 

16. As you have not satisfied the criteria for the English language ability requirements in 485.212 of the Regulations, I have not assessed your application against the remaining requirements in the subclass. 

17. As clause 485.212 is not met, I find the criteria for the grant of a subclass 485 Temporary Graduate visa in the Post-Study Work stream are not met and it is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

18. The Tribunal affirms the decision under review.

    Tim Connellan
    Member