Rony (Migration)

[2019] AATA 5592

Rony (Migration) [2019] AATA 5592 (9 December 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Mohammad Abul Kalam Rony

CASE NUMBER:  1909547

DIBP REFERENCE(S):  BCC2019/284913

MEMBER:  Roslyn Smidt

DATE:  9 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 09 December 2019 at 2:33pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – test undertaken outside of prescribed period – after visa application was lodged – 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 31 January 2019. Visa Class VC contains Subclass 485. 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 26 March 2019 because the applicant did not satisfy the English language requirement.

4. The applicant appeared before the Tribunal on 9 December 2019 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 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).

8. In essence, cl.485.212(a) requires the applicant to provide evidence that he had undertaken an approved language test within the three years prior to the date of application and had achieved the specified minimum score.

9. In his visa application the applicant stated that he completed a Pearson Test of Academic English on 22 January 2019, and provided a test result with an overall score of 51. However, the delegate found that the applicant achieved a minimum score of 32 for speaking, below the minimum score stipulated in the legislative instrument of 36.

10. At the beginning of the hearing the applicant provided a PTE Academic Report which states that he completed a test on 1 December 2019 and achieved scores above the required minimums in all categories. At the hearing I explained that to meet the requirements for this visa he needed to have completed the test successfully before lodging his application and asked if he wished to make any further submissions. In essence he explain that he had not properly understood the requirements.

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1. It is clear that the applicant did not satisfactorily complete an approved English language test within 36 months prior to lodging his application for a 485 visa.

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

3. On the basis of the above, the applicant meets the requirements of cl.485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

4. 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

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

   Roslyn Smidt
   Member

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