Sapkota (Migration)

[2023] AATA 1841

Sapkota (Migration) [2023] AATA 1841 (13 June 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Rabin Sapkota

CASE NUMBER:  2215319

HOME AFFAIRS REFERENCE(S):          BCC2021/1854581

MEMBER:Namoi Dougall

DATE:13 June 2023

PLACE OF DECISION:  Sydney

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

Statement made on 13 June 2023 at 12:50pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test undertaken after application made – surge in bookings during COVID pandemic and test dates not available – travel from regional city to do test – department allowed applications without English test results – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(1)(a)

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).

2. The applicant applied for the visa on 28 September 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 visa on 3 October 2022 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 23 May 2023 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

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 not undertaken an English test in the last 36 months and had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument.

5. On 19 October 2022, the applicant provided to the Tribunal a receipt for an English language test to be undertaken on 17 November 2021.

6. On 9 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 and achieved the minimum results withing 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 also referred to in its letter of 9 May 2023, to the PTE English language test results for the test undertaken on 17 November 2021 and stated that since the test was undertaken after the date of your application it cannot be relied upon to meet the requirements of reg.485.212. The Tribunal then explained that as the applicant’s Subclass 485 visa application was not accompanied by evidence that he had undertaken an English language test between 27 September 2018 to 27 September 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. On 10 May 2023, the applicant responded to the Tribunal’s letter of 9 May 2023 by stating that his test bookings were impacted by a surge during the COVID outbreak and dates were not available for tests. He also stated that the Department was flexible and allowed Subclass 485 visa applications to be lodged without English evidence as test were not available. The applicant also stated that he was an essential worker in Bathurst and Dubbo and had to travel to Sydney to do his test which he finally managed on 17 November 2021.

9. At the hearing the Tribunal explained the requirements of cl.485.212 and the contents of the Tribunal’s letter and the applicant stated that the understood the requirements. The applicant referred to the COVID-19 and most of the test centres were affected and the Department allowed them to apply without the English test with the application. This is why he provided the test late. The Tribunal referred to the applicant being able to sit a test prior to the outbreak of COVID and the applicant stated that he completed his studies July 2021 and then went to Bathurst where he worked as a COVID cleaner and there are no test centres in Dubbo and Bathurst. The main reasons was that at the time of the application he could apply without the test result and there were no test centres open and he could give the test later.

10. The Tribunal explained the requirements again and the applicant stated that the decision must be made later as he is outside of Australia and will return on 09 June 2023. The Tribunal sated that it would delay the decision for a short period and advised that the applicant seek advice.

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

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

13. 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

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

Namoi Dougall
Member