Pentareddy (Migration)

[2017] AATA 1376

Pentareddy (Migration) [2017] AATA 1376 (11 August 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Niklesh Pentareddy

CASE NUMBER:  1705725

DIBP REFERENCE(S):  BCC2017/390502

MEMBER:Alison Mercer

DATE:11 August 2017

PLACE OF DECISION:  Melbourne

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

Statement made on 11 August 2017 at 3:20pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Specified English test not undertaken within 3 years before visa application date

LEGISLATION

Migration Act 1958, s 65

Migration Regulations 1994, 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 30 January 2017. 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 March 2017 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and had stated ‘no’ to the question in his online visa application about whether he had undertaken a specified English test in the 36 months before he made his visa application. The delegate therefore found that the applicant did not meet cl.485.212.

4. The Tribunal received a review application from the applicant on 23 March 2017, which was accompanied by a copy of the delegate’s decision. 

5. On 6 July 2017, the Tribunal wrote to the applicant to invite him to attend a hearing on 26 July 2017.  It also requested him to provide any material he wished to provide to support his case.  The applicant responded to indicate that he would attend the hearing and he provided a copy of a Pearson Test of English (PTE) report form for an English test he undertook on 8 March 2017 and another PTE English test report form for a test he undertook on 29 April 2017.  He also provided a letter of completion issued on 30 November 2016 from Charles Sturt University indicating that he had completed a Masters of Information Technology (Computer Networking) between July 2015 and November 2016, the medium for which was English.

6. The applicant appeared before the Tribunal on 26 July 2017 to give evidence and present arguments. He told the Tribunal that he did do another English test (an IELTS) test before he made his subclass 485 visa application but it had expired so he could not submit it; it was undertaken around 2011 as best as he could remember. He booked a PTE English test on 17 January 2017 and sat this test but there was a delay in receiving the results due to a technical issue about his log-in ID. When he got the results, he had not obtained the required scores in all components of the test so he booked another PTE English test on 8 March 2017. He also failed to get the required scores so he returned home on a bridging visa B, with the hope that he could obtain a visitor visa and then return to Australia and apply again for a subclass 485 visa. He sat a PTE English test in India on 29 April 2017 and obtained the required scores this time, but was unable to obtain a visitor’s visa. He returned to Australia on his bridging visa B. The Tribunal discussed with the applicant the legal requirement in the relevant written instrument that only a specified English test undertaken in the specified period (that is, 36 months immediately preceding the making of the visa application) could be taken into account to satisfy cl.485.212. This meant that the Tribunal was not legally able to take into account the English tests that the applicant undertook after he applied for his subclass 485 visa.

7. 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. Therefore, the applicant must meet cl.485.212(a).

3. The evidence before the Tribunal is that the applicant undertook 2 PTE Academic English tests, one on 8 March 2017 in which he obtained an overall score of 47, and one on 29 April 2017, in which he obtained an overall score of 50. A PTE Academic English test is a test specified in item 1 of IMMI 15/062, and item 3 of that instrument provides that the minimum score required is 50 (with a minimum score of 36 in each of the components for writing, speaking, listening and writing). The applicant’s PTE Academic test of 8 March 2017 fails to meet the required score. His test of 29 April 2017 does meet the required scores, but was undertaken after he made his visa application on 30 January 2017. As discussed with the applicant at the hearing, item 4 of IMMI 15/062 specifies that, for the purposes of cl.485.212(a), a specified English test must have been undertaken within the 3 years before the day on which the visa application was made. As such, the Tribunal is legally unable to take the test of 29 April 2017 into account as it was not undertaken in the relevant 3 year period.

4. The applicant gave evidence that he did sit another PTE Academic test on 17 January 2017, before he made the visa application, but did not achieve the specified scores in this test.  He also told the Tribunal that he undertook another English test but in 2011, more than 3 years before making the current visa application on 30 January 2017.

5. Accordingly, the Tribunal finds that the applicant did not undertake a specified English test in which he obtained the specified scores in the specified period (that is, during the 3 years before the day on which he made his visa application). The Tribunal must therefore find he does not satisfy cl.485.212(a).

6. As discussed with the applicant at the hearing, the Tribunal has no legal power to accept an English test undertaken outside the period specified in item 4 of IMMI 15/062, and has no power to waive this requirement.

7. On the basis of the above, the Tribunal must find that 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 decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Alison Mercer
Member