Patel (Migration)

[2020] AATA 3001

Patel (Migration) [2020] AATA 3001 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Chandreshkumar Prakashkumar Patel

CASE NUMBER:  2000511

DIBP REFERENCE(S):  BCC2019/4388579

MEMBER:Karen McNamara

DATE:13 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 13 July 2020 at 4:46pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – no evidence of specified test result within three years before application – depression and family bereavements – no discretion to waive requirement – decision under review affirmed

LEGISLATION        

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), schedule 2, cl 485.212(a)(ii)

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 (the delegate) to refuse to grant Mr Chandreshkumar Prakashkumar Patel (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 3 September 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 23 December 2019 because the applicant did not have the required English language proficiency.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 10 January 2020. A copy of the delegate’s decision record accompanied the review application.

5. On 29 May 2020, the Tribunal invited the applicant to appear before it on 26 June 2020 to give evidence and present arguments.

6. On Saturday 20 June 2020, the applicant advised the Tribunal via email that he was seeking a postponement of the hearing due to “some unavoidable circumstances” and cited that family members had been diagnosed with Covid-19 and that he was feeling depressed.

7. On 22 June 2020, the Tribunal requested the applicant via email to provide verifiable evidence of the reason as to why he was unable to attend the telephone hearing and that upon receipt of such, the Tribunal would decide whether to grant a postponement. The applicant was advised that unless the reason for a postponement is supported by verifiable evidence and is reasonable enough for the hearing not to proceed, the hearing would continue at the scheduled time.

8. The applicant did not provide further submissions or evidence to the Tribunal and on 26 June 2020, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments.

9. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

11. 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)).

12. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. The relevant passports are a valid passport issued by; the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

13. 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.

14. The Tribunal is satisfied that the applicant holds an Indian passport and therefore does not hold a passport specified in IMMI 15/062. The applicant therefore must demonstrate that he has achieved the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 3 September 2019).

15. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 3 September 2019 the applicant lodged an electronic application for a Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa. When making the visa application the applicant answered “Yes” to the question “Have you undertaken an English test within the last 36 months?” Department records show that the applicant in his application form provided test report reference 16IN272644PATC001A for an IELTS test undertaken on 17 March 2017.

16. The Department’s records show that the Department subsequently contacted the applicant requesting him to provide evidence of holding an eligible passport or evidence of his English test results. On 16 December 2019 the applicant wrote to the Department stating “ I would request you to grant me some time in order to prepare for English exam and get the best scores as per my ability.”

17. The delegate records that at the time of decision the applicant had not provided evidence of undertaking an English language test with the minimum scores as specified by the Minister and therefore the applicant did not satisfy regulation 485.212(a)(ii).

18. There is no evidence before the Tribunal to support that the applicant has undertaken a specified language test in the specified period and achieved the specified results.

19. At the hearing the Tribunal discussed with the applicant the requirements that the visa application be accompanied by evidence that the applicant had undertaken a specified language test in the specified period and achieved the specified results.

20. The applicant told the Tribunal that he required additional time to sit an English test. When asked by the Tribunal if he has undertaken an English test, the applicant told the Tribunal that he was unable to complete a test due to depression and family bereavements.  The applicant told the Tribunal that he had sat an English test but did not achieve the minimum score and required three to four months to sit another. There is no evidence before the Tribunal to support that the applicant has undertaken an English test.

21. The Tribunal told the applicant on numerous occasions through out the hearing that it did not have the discretion to waive the requirements of cl.485.212 and that, it would not provide the applicant an extension of time to sit an English exam. The Tribunal explained to the applicant that the legislation requires that at the time the applicant lodged his application with the Department, his application was required to be accompanied by evidence, that he had achieved the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 3 September 2019).

22. In this case the applicant has not provided evidence that he undertook a language test specified by the Minister in a legislative instrument (IMMI 15/062) and therefore does not meet cl.485.212(a)(i).

23. The Tribunal further finds that there is no evidence before the Tribunal to support that the applicant’s application was accompanied by evidence that he has achieved within the specified period, a score specified by the Minister in the relevant instrument (IMMI 15/062). As such the applicant does not meet the requirements of cl.485.212(a)(ii).

24. Therefore, the applicant does not meet cl.485.212(a).

25. 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

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

    Karen McNamara
    Member