Parveen Kumar (Migration)

[2024] AATA 700

Parveen Kumar (Migration) [2024] AATA 700 (25 March 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr  Parveen Kumar
Ms Shilpa Rani
Mr Aven Taya

REPRESENTATIVE:  Mr Abhi Manjibhai Mangukiya (MARN: 2117675)

CASE NUMBER:  2205845

HOME AFFAIRS REFERENCE(S):          BCC2020/2075885

MEMBER:Ian Berry

DATE:25 March 2024

PLACE OF DECISION:  Brisbane

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

Statement made on 25 March 2024 at 11:10am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – at least three tests undertaken – no evidence that specified score achieved – members of family unit – decision under review affirmed

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) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 12 August 2020. 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 visas on 4 April 2022 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 24 January 2024 to give evidence and present arguments. Only the primary applicant gave evidence. The applicant did not require an interpreter.

5. The applicants were represented in relation to the review. The representative was expected to attend. The Tribunal enquired whether the applicant wished to wait for his representative to attend or proceed with the hearing and if he entered through Teams, he would be invited in. He consented to proceed. The representative did not attend.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)).

2. 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).

3. The applicant had undertaken at least three English tests in the three year period ending the day before the making of his visa application.  For the applicant to pass the English test, he needed, for the IELTS test, at least a 6.0 in the overall band test, with at least 5.5 in each of the categories. Also, he completed an English test result outside the period of three years. The Tribunal noted that the applicant completed a Pearson PTE Academic English test result receiving an overall score of 50 and in listening 51; reading 50; speaking 52 and writing 51.

4. The applicant’s claim is that he could not complete and English test because of the pandemic evidenced by a lockdown in or about March 2020. Concessions were legislated due to the pandemic COVID19 and other unrelated circumstances, which ended on 25 November 2023. These provisions do not affect the applicant in his inability to complete an English test prior to 12 August 2020.  A concession period applied to applicants who made an application between 1 February 2020 and 25 November 2023[1].  However, the concessions did not include the applicant in relation to his quest to have attained a successful English test result.

   [1] LIN 23/063 relating to cl.485 .511 and regulation 1.15N(1)(a)

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

6. In respect of the other applicants (the secondary applicants), which does not include the primary applicant, the Tribunal notes there is no information before it to suggest that secondary applicants meet the primary criteria for the grant of the visa. The secondary applicants applied for the visa because they were members of the family unit of the applicant.  As the Tribunal has found that the applicant does not meet a criterion for the grant of the visa, the Tribunal must therefore affirm the decision in respect of the secondary applicants, as they were members of the family unit of a person who did not satisfy the primary criteria for the visa.

1. 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

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

Ian Berry
Member