Pushkar (Migration)

[2023] AATA 1549

Pushkar (Migration) [2023] AATA 1549 (25 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pushkar Pushkar
Mrs Savita Savita

CASE NUMBER:  2300206

HOME AFFAIRS REFERENCE(S):          BCC2021/66735

MEMBER:Namoi Dougall

DATE:25 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 25 May 2023 at 11:49am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – PTE English test results – decision under review affirmed 

LEGISLATION

Migration Act 1958, ss 65, 362, 379
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 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 23 November 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.) 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 22 December 2022 because the first named applicant (the applicant) did not have the required English language proficiency.

4. On 2 May 2023 the Tribunal wrote to the review applicant advising that it had considered all the material it had about the application but could not make a favourable decision on that information alone. The Tribunal invited the review applicant to give evidence and present arguments at a hearing on25 May 2023. The invitation stated that if they did not attend the hearing and an adjournment was not granted, the Tribunal may make a decision on the case without further notice. The Tribunal also sent them SMS reminders about the hearing 5 business days and one business day before the scheduled hearing.

5. No response to the hearing invitation was received and the review applicant did not appear before the Tribunal on the day and at the scheduled time and place. Having reviewed the Tribunal file, the Tribunal is satisfied that the review applicant was properly invited to a hearing in accordance with s 379A(5), the invitation has not been returned to sender, and that two separate SMS reminders were also sent to the review applicant about the hearing. In these circumstances, and pursuant to s 362B of the Act, the Tribunal has decided to make its decision on the review without taking any further action to enable the applicant to appear before it. In making the decision to proceed to make its decision the Tribunal has considered the circumstances of the review including the information on the file including that there is no information or evidence on the file that indicates that the applicant can meet the requirements of reg.482.212 which the applicant would be aware of as it was the issue in question dealt with in the delegate’s decision and the Tribunal set out the issue in its natural justice letter of 15 May 2023 which referred to below.

6. For the following reasons, the Tribunal has concluded that 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), however, this is not relevant to the circumstances of this matter.

3. 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).

4. The applicant in this case stated in the visa application that he had undertaken a PTE English test in the last 36 months and test date was 16 September 2021. The applicant’s overall score for that PTE English test was 40 which is less than the specified overall score for a PTE language test of 50.

5. The Department requested on 27 July 2022 and 2 September 2022 that the applicant provide the specified test scores for a specified English test, however, the applicant did not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument.

6. On 15 May 2023, the Tribunal sent the applicant a natural justice letter which referred to the Department refusing the Subclass 485 visa as the applicant had not met the requirements of reg.485.212 as the applicant has not undertaken a specified English language test in which the applicant had achieved the minimum results within the three years before the date on which the visa application was made. Nor did the applicant hold a specified passport. The Tribunal provided a copy of the relevant legislative instrument which set out the specified language tests and scores and the period within which the specified scores are to be achieved.

7. The Tribunal explained that as the applicant’s Subclass 485 visa application was not accompanied by evidence that he had undertaken an English language test between 22 November 2018 to 22 Novmeber 2021 where he achieved the relevant test scores, the Tribunal may find that the applicant does not meet the requirements of reg.485.212. Further, if the Tribunal makes this finding, then the Tribunal will affirm the Department’s original decision.

8. No response to the Tribunal’s letter of 15 May 2023 was received by the Tribunal.

9. As the applicant did not achieve in a language test score in a test undertaken within the period specified in the instrument in an instrument, the specified scores and therefore, has not achieved, the score specified the Tribunal is satisfied that the applicant does not meet the requirements of cl.485.212(20(a).

10. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212.

11. 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.

12. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 485 visa as it finds that she does not meet the secondary visa criteria requiring her to be a member of the family unit of a person who holds a subclass 485 visa, and there is no evidence that the second named applicant meets the primary visa criteria in her own right.

DECISION

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

Namoi Dougall
Member