Rezazadeh (Migration)

[2020] AATA 4121

Rezazadeh (Migration) [2020] AATA 4121 (13 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Amir Rezazadeh

CASE NUMBER:  1928723

DIBP REFERENCE(S):  BCC2019/3730970

MEMBER:Tim Connellan

DATE:13 July 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 13 July 2020 at 1:47pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test taken within three years before application made and minimum requirements satisfied – evidence not provided with application or on department’s request – department’s email in applicant’s junk email box – evidence provided later – no discretion to waive requirement – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(i)

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 28 July 2019. 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 8 October 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 9 July 2020 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 16/062. 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).

8. Mr Amir Rezazadeh, you told the Tribunal you are a national of Iran and you travel on an Iranian passport and you have no other passport.  Your date of birth is 29 March 1994.

9. On 28 July 2019 you lodged a subclass 485 Temporary Graduate (post-study) work stream visa.

10. The delegate considered your application and found you did not meet the English language requirements for the grant of a visa and you appealed that decision to be reviewed by this Tribunal. 

11. With your review application you included a copy of the primary decision and you told the Tribunal you had read and understood that decision, which we discussed today in some detail and I read from that decision in some detail, and it was apparent you did understand it.

12. 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 states: The application was accompanied by evidence that the applicant has undertaken a language test, and has achieved within the period specified, the score specified by the Minister.

13. And for the purpose of clause 485.212, the Minister has specified a number of approved language tests, including the Pearson Test of English Academic, known as the PTE test that you have completed and have used in support of your application.

14. It specifies that the test must have been undertaken within the three years before the date on which the application was made, and, as I said, it states that the application must be accompanied by that evidence.

15. An initial assessment of your application was undertaken on 7 September 2019 and I read from the decision which states:

    You answered “yes” to the following declaration:

    Do you hold a current passport from one of the specified countries, or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English

    On 7 September 2019, the application was assessed and the Department sent an email to your email address [email protected] requesting evidence that the applicant held an eligible passport, or had undertaken the required English language test in the 36 months prior to lodgement, amongst other documents.  The applicant was given 28 days to respond.

    As at 8 October the applicant did not respond to the request, nor indicate they intended to comply.  The applicant did not provide evidence to support their claims and as such, the delegate is unable to be satisfied the applicant meets Regulation 485.212.

    Based on all this information, I find the applicant does not meet the requirements of Regulation 485.212.

16. Now the situation is you told the Tribunal that you lodged your application without including the English, because you did not realise that you had to.  You ticked that you had done an English test in the preceding three years because you had done the PTE test on 26 July 2019, in which you had scored an overall score of 57, satisfying the minimum requirements.  However, you had not provided evidence of that test with your application.

17. You say you did not know it was a requirement because it went to your junk mail, which was that email address that was mentioned in the decision [email protected].  Well, while you say it was your junk mail, it was the last address advised to the Department.  You say that you became aware of the decision when you found it in your junk mail folder at some stage.  You advise you did not change that email address until you lodged your application with the Tribunal, at which stage you also lodged your evidence of English language being the PTE test.

18. The difficulty, as I have explained, is that cl. 485.212 requires the application to be accompanied by evidence that the applicant has undertaken a language test and it is plain that what that means is that the evidence of English has to be provided with the application.  And while you have done a test within the preceding three years, what it says is that – in the explanatory notes to the legislation:

    The applicant must demonstrate they have achieved the required level of English language proficiency by providing evidence on lodgement of their visa application, that they have achieved the minimum score.

19. The requirement is clearly that it must be provided with the lodgement of the application.  You did not lodge the evidence with your application and therefore, it cannot be considered.

20. Despite the evidence and the submissions you have made to the Tribunal about job opportunities, and other evidence that you have provided, satisfaction of the English language requirement is not a matter in which the Tribunal has discretion. 

21. The English language requirement is one of the mandatory requirements that must be met at the time of lodging subclass 485 post-study work stream visa application.

22. As you did not provide evidence of having successfully completed a test within three years when you lodged the application, you do not satisfy Regulation 485.212(a)(i).  As I said before, you travel on an Iranian passport and you do not have any other current passport, so you do not satisfy 485.212(b).

23. As clause 485.212 is not met, I find the criteria for the grant of a subclass 485 temporary graduate visa in the post-study work stream are not met.  It is therefore the decision of this Tribunal to affirm the decision under review.

    DECISION

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

    Tim Connellan
    Member