Sartunge (Migration)

[2023] AATA 4638

Sartunge (Migration) [2023] AATA 4638 (28 November 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Karishma Sartunge
Mr Sagar Shrestha

REPRESENTATIVE:  Ms Jasmine Claire Sallis (MARN: 1800400)

CASE NUMBER:  2317086

HOME AFFAIRS REFERENCE(S):          BCC2023/4247287

MEMBER:Amanda Mendes Da Costa

DATE:28 November 2023

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

·cl 485.212 of Schedule 2 to the Regulations.

The Tribunal considers that the application of the second named applicant should be reconsidered on the basis he meets the secondary requirements for the grant of a Skilled (Provisional) (Class VC) (Subclass 485) visa.

Statement made on 28 November 2023 at 12.55pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – English language proficiency requirements met – applicant has provided a Pearson PTE Academic Score Report – decision under review remitted

LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, 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 applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 26 July 2023. 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 visas on 13 October 2023 because the first named applicant (the applicant) did not have the required English language proficiency.

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 based on the material before it, pursuant to s.360(2)(a) of the Act.

5. The applicants were represented in relation to the review.

6. In making its decision, the Tribunal has taken into consideration the information in both the Departmental and Tribunal files.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

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).

3. Based on the evidence before it, The Tribunal finds that the applicant does not meet the requirements of cl 485.232 or cl 485.233 and therefore cl 485.212(1) does apply.

4. 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(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a).

5. The Tribunal notes that the applicant has provided a Pearson PTE Academic Score Report dated 10 March 2021 containing results for an English test undertaken by her on that date. The report indicates that the applicant’s results were an overall score of 67 with the following individual scores:

Listening         71

Reading          63

Speaking        62

Writing            72

1. The Tribunal notes that the required scores (in IMMI 15/062) for a Pearson PTE Academic test are an overall minimum score of 50 with minimum individual scores of Listening 36; Reading 36, Speaking 36; and Writing 36.

2. Based on the evidence before it, the Tribunal is satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

3. Given its findings regarding the applicant, the Tribunal finds that the second named applicant meets the secondary requirements for the grant of the visa.

4. 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 visas.

DECISION

1. The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:

   · cl 485.212 of Schedule 2 to the Regulations.

2. The Tribunal considers that the application of the second named applicant should be reconsidered on the basis he meets the secondary requirements for a Skilled (Provisional) (Class VC) (Subclass 485) visa.

Amanda Mendes Da Costa
Member