Richards (Migration)

[2019] AATA 3304

Richards (Migration) [2019] AATA 3304 (4 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Shushanna Rye Richards

CASE NUMBER:  1902758

DIBP REFERENCE(S):  BCC2018/3440612

MEMBER:Warren Stooke AM

DATE:4 July 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 04 July 2019 at 3:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – application not accompanied by required evidence – test undertaken outside of prescribed period – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
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 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 11 September 2018. 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 16 January 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 28 June 2019 to give evidence and present arguments.

5. At the commencement of the hearing, the Tribunal confirmed that the applicant had read the delegate’s decision of 16 January 2019 and that she understood the content of the decision. In this regard, the applicant stated that she understood the reason the delegate refused the application was because: – “I have not done the IELTS Test along with my application”.

6. The applicant confirmed that she had provided a copy of the delegate’s decision to the Tribunal with her application.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 of the Register of Instruments - Skilled visas. 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).

10. The applicant provided evidence that prior to completing her application she had performed an English test for her college, Southern Cross Education Institute, which was in June 2015.

11. Further, the applicant accepted that she had completed the IELTS test 4 months after lodging her application, which was 30 January 2019.

12. The Tribunal is satisfied on the basis of the evidence that the applicant did not submit an IELTS test result with her application and that an IELTS test was undertake two weeks after the delegate’s decision was advised to the applicant. In this regard, evidence was provided to the Tribunal prior to the hearing that confirmed the applicant undertook her IELTS Test on 30 January 2019.

13. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

14. 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

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

    Warren Stooke AM
    Member