Rao (Migration)

[2023] AATA 581

Rao (Migration) [2023] AATA 581 (2 March 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Basit Ali Rao

REPRESENTATIVE:  Mr Jujhar Bajwa (MARN: 0742209)

CASE NUMBER:  2214568

HOME AFFAIRS REFERENCE(S):          BCC2021/1692096

MEMBER:Mary Sheargold

DATE:2 March 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl 485.212 of Schedule 2 to the Regulations

Statement made on 02 March 2023 at 9:09am

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

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
Migration Regulations 1994 (Cth), 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 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). The applicant applied for the visa on 30 August 2021. The delegate refused to grant the visa on 20 September 2022.

2. The delegate made the decision on the basis that evidence of English language ability was not provided as required to satisfy a criterion for the grant of the visa under the Migration Regulations 1994 (Cth) (the Regulations).

3. On 23 January 2023, the Tribunal received a copy of the applicant’s most recent PTE English language test score, indicating an overall score of 53, and scores above 50 in each of Speaking, Reading, Writing and Listening.  The minimum requirements for this test outcome are set out in the relevant instrument as an overall score of 50, and a minimum score of 36 in each of the 4 categories.  The applicant’s latest result is clearly above this threshold. In light of the new evidence received, the Tribunal is satisfied that the criterion is met and has concluded that the matter should be remitted for reconsideration.

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicant on the basis of the material before it, pursuant to s 360(2)(a) of the Act.

   DECISION

5. The Tribunal remits the application for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

   ·cl 485.212 of Schedule 2 to the Regulations

   Mary Sheargold
   Member