Poudel (Migration)

[2020] AATA 5803

Poudel (Migration) [2020] AATA 5803 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shankar Poudel
Ms Samiksha Lamichhane Poudel

CASE NUMBER:  2004662

DIBP REFERENCE(S):  BCC2019/6885013

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         22 October 2020 at 2:28 pm (VIC time)

DATE OF WRITTEN RECORD:                15 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 15 December 2020 at 11:23am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Temporary Graduate Post Study work stream – English language requirement – Pearson Test of English academic reports – completing English exam prior to application – relevant passport – 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 decisions made by a delegate of the Minister for Immigration on 27 February 2020 to refuse to grant the visa applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (the Act).

2. At the hearing on 22 October 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 Poudel, you applied for the grant of a 485 Temporary Graduate Post Study work stream visa on 27 December 2019. 

4. The delegate considered your case and found you did not meet the English language requirements for the grant of a visa.  You appealed that decision to be reviewed by this Tribunal and with your review application you included a copy of the primary decision which you told the Tribunal you had read and understood.

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 which requires that the application was accompanied by evidence that the applicant had undertaken a language test specified by the Minister and had achieved a score specified by the Minister and that the test was taken within the three years before the date on which the application was made.

6. When I read from your decision - a copy of which you provided with your application - it says you lodged your application on 27 December 2019.  You answered "Yes" to the questions "Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland to demonstrate you have competent English or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English." 

7. In support of your English language ability you provided a Pearson Test of English and a PTE academic report undertaken on 16 December 2019 in which you achieved an overall score of 46.  And as it says in the decision, the English language requirement is one of the mandatory requirements that must be met at time of lodging the post study work stream visa application, it requires an applicant to have achieved a minimum overall score of 50 in a PTE academic test.

8. Based on the report provided, you have not achieved the required score therefore you do not meet Clause 485.212(a)(2).  You have not provided evidence you hold a passport of the type specified by the Minister and therefore you do not satisfy 484.212(b).

9. Now, you have subsequently provided a PTE test taken a few days ago, on 19 October 2020 in which you achieved an overall score of 55 and told the  Tribunal that when you lodged the application you thought the department would ask you for a further PTE and you have made a couple of submissions, a recent one by your agent that says he believes the department could have or should have rung you and told you that your English score was not satisfactory and invited you to withdraw the application or whatever, but that didn’t happen.

10. Your submissions and your agents say that you made this mistake through lack of knowledge of the migration law and points out that you lodged this application without seeking professional advice or getting the help of an agent or somebody who knew what they were doing and you have told the Tribunal if you were granted a visa and it enabled you to get experience in Australia your agent says that would be of benefit to Australia, which I suspect is the truth and you say it might help you to get a job in Nepal.   While that may be true, the problem is that the results of the test you sat on 19 October 2020 cannot be considered as that test was taken well after the date of your application, which was 27 December 2019.

11. 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.

12. As you have not provided evidence of having done an acceptable English test within the three years immediately before the day on which you lodged your application you do not satisfy regulation 485.212(a)(1).  You have not provided evidence you hold a passport of the type specified by the Minister and in fact the evidence on file indicates you travel on a passport of Nepal and therefore you do not satisfy 485.212(b) of the regulations.

13. As you have not satisfied the criteria for the English language ability requirement prescribed in 485.212 of the Regulations, I find the criteria for the grant of a subclass 485 Temporary Graduate visa in the Post Study Work Stream are not met. 

14. It is therefore the decision of this Tribunal to affirm the decision under review and this decision was made at 2.27 pm on this, 22 October 2020.

    DECISION

15. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member