Pham (Migration)

[2024] AATA 3957

Pham (Migration) [2024] AATA 3957 (17 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Thi Thanh Loan Pham

REPRESENTATIVE:  Ms Thuy Thi Hoang (MARN: 1807905)

CASE NUMBER:  2211193

HOME AFFAIRS REFERENCE(S):          BCC2021/286853

MEMBER:Peter Katsambanis

DATE:17 September 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 17 September 2024 at 11:30am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – no English test results provided – decision under review affirmed 

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

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 applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 26 February 2021. 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 as the application was made after that date. 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 visa on 18 July 2022 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 17 September 2024 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Vietnamese and English languages.

5. The applicant was represented in relation to the review by a registered migration agent. The representative did not attend the hearing.

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. Clause 485.212(1) 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(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).

3. There is no evidence before the Tribunal to indicate that the applicant, at the time she made her application, held a visa that is a class of visa specified in cl 485.232 or cl 485.233, which require that an applicant must hold a Subclass 485 (Temporary Graduate) visa in the Post-Study Work stream when the application for the current visa was made. At the hearing, the applicant confirmed that she was the holder of a subclass 500 student visa at the time she made the application that is the subject of this review.

4. Accordingly, on the evidence before it, the Tribunal finds that the applicant does not satisfy cl 485.232 or cl 485.233 and, therefore, cl 485.212(1) does apply in her circumstances.

5. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062, unless the applicant holds a passport of the type specified in cl 485.212(1)(b). It is noted that IMMI 15/062 was revoked by LIN 24/021, which commenced operation on 23 March 2024. However, IMMI 15/062 continues to apply to applications made, but not yet finally determined, before the commencement of LIN 24/021.

6. In the present case, there is no evidence that the applicant has held a passport of a type specified. At the hearing, the applicant confirmed that she held a passport from the Socialist Republic of Vietnam and that she had never held any other passport.

7. Accordingly, on the evidence before it, the Tribunal finds that cl 485.212(1)(b) is not met in the applicant’s circumstances. Therefore, the applicant must meet cl 485.212(1)(a).

8. The delegate’s decision record notes that the applicant did not provide any evidence to the Department that she met the English language proficiency requirements in cl 485.212(1)(a) at any time before the delegate’s decision made on 18 July 2022.

9. As discussed with the applicant at the hearing, she has not provided the Tribunal with any evidence that she met the English language proficiency requirements in cl 485.212(1)(a) at any time since she lodged her application for review.

10. At the hearing, the applicant confirmed that she had not met the English language proficiency requirements at the time she made her application and added that she still had not met these requirements at the date of the hearing. She stated that she was currently studying to improve her English so that she could meet these requirements in the future, but her teacher had told her that she was not yet ready to sit and pass either an IELTS test or any other type of English language proficiency test. The applicant agreed that she had not provided the Tribunal with any evidence that she met the English language proficiency requirements and also stated that she was fully aware that she did not meet the criteria to be granted the visa she had applied for.

11. Accordingly, on the evidence before it and in particular the applicant’s direct evidence at the hearing that she does not meet the English language proficiency requirements, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

12. 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 decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Peter Katsambanis
Member