Sarwar (Migration)

[2020] AATA 2783

Sarwar (Migration) [2020] AATA 2783 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Muhammad Arsalan Sarwar

CASE NUMBER:  2000752

DIBP REFERENCE(S):  BCC2019/5739213

MEMBER:Antonio Dronjic

DATE AND TIME OF

ORAL DECISION AND REASONS:         23 June 2020 at 3:12 pm (VIC time)

DATE OF WRITTEN RECORD:                29 June 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 June 2020 at 10:11am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – test not taken within three years before visa application made – test taken after applying and report provided to tribunal – decision under review affirmed

LEGISLATION

Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(ii)

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 15 January 2020 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 13 November 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).

3. The delegate refused the visas on 15 January 2020 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and had not undertaken a specified English test with the specified period in which he obtained the specified score.

4. The Tribunal received a review application from the applicant on 16 January 2020, which was accompanied by a copy of the delegate’s decision. According to the primary decision record, in his application form, the applicant answered “No” to the question “Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement); and ‘No’ to the question ‘Have you undertaken an English test within the last 36 months?”.

5. With the review application, the applicant submitted a copy of IELTS test report undertaken on 7 December 2019 in which he achieved the following results:

   Overall Band Score 6.5
   Listening 8.0
   Reading 6.5
   Writing 6.5
   Speaking 5.5

6. For the purposes of paragraph 485.212(a)(ii) the Minister has specified in the relevant instrument that IELTS English language tests must have been undertaken within the three years before the day on which the application was made.

7. As the applicant undertook IELTS English language test after lodgement of visa application, he does not meet the requirements of cl.485.212(a)(ii)

8. At the hearing on 23 June 2020 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

9. Based on the evidence before the Tribunal, the Tribunal is not satisfied that the application for a Subclass 485 visa lodged with the Department on 13 November 2019, was accompanied by evidence that you have achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the relevant instrument. Accordingly, you do not meet the requirements of cl.485.212(a)(ii)

10. You stated in your evidence that you do not hold any of the passports as specified by the minister in the relevant instrument. Accordingly, you do not meet the requirements of cl.485.212(b)

11. Based on the evidence before the Tribunal, including your oral evidence given at today’s hearing, the Tribunal is not satisfied that you meet the requirements of cl.485.212.

    DECISION

12. The Tribunal affirms the decision under review.

    Antonio Dronjic
    Member