Sebastian (Migration)

[2019] AATA 5596

Sebastian (Migration) [2019] AATA 5596 (9 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nigel Jude Sebastian

CASE NUMBER:  1922460

DIBP REFERENCE(S):  BCC2019/1182283

MEMBER:Wan Shum

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 1:18pm

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 8 March 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.

3. The delegate refused the visa on 1 August 2019 because the applicant did not have the required English language proficiency.

4. The applicant sought review of that decision and was represented in relation to the review by a registered migration agent.

5. The applicant appeared before the Tribunal on 26 November 2019 to give evidence and present arguments. The representative also attended.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, the applicant holds a passport of India and there is no evidence that the applicant held a passport of a type specified, and as such cl.485.212(b) is not met. The applicant must therefore meet cl.485.212(a).

9. The applicant confirmed at the hearing that he had not undertaken a test within the 36 months prior to his application having been made. It appears that the applicant mistakenly believed that an ELICOS course undertaken at University of Wollongong College met the requirements. 6th June 2019 from the department requesting

10. On his visa application form, he provided the following details for the English language test: OET; reference number CRICOS02723D. After a request was made for the results of the OET, the applicant informed the Department on 8 May 2019 that he had arranged to undertake a Pearson Test of English Academic (PTE Academic) test. A second request was made by the Department for a copy of the OET. It was submitted that the applicant thought he was able to take one of the English language tests after the visa application was lodged based on the requests received from the Department. In the Tribunal’s view, the Department officer was merely requesting the results of the test that the applicant had indicated on the visa application form that he had taken.

11. There is no dispute that the PTE Academic test was taken after the visa application was made. The applicant said he was not aware of the requirements, had selected “OET” thinking it meant Other English test or some such thing, and he had made the application by himself.

12. The applicant claims that he was not aware of the requirement and he did achieve the necessary scores in one of the specified tests taken but after the visa application was made. However, the wording of cl.485.212 and the applicable instrument makes clear that the specified English language test must have been undertaken within the three years before the day on which the application was made. The applicant has achieved the minimum specified scores in the PTE Academic test undertaken on 27 May 2019, but this was after the visa application was made. Accordingly the results of this test cannot meet the requirement specified in IMMI 15/062 paragraph 4.

13. On the basis of the evidence before it, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

14. The Tribunal accepts his claims that it was a misunderstanding of the requirements, and while it has sympathy for the applicant, it cannot remit the matter to the Department when he does not meet this criterion. The Tribunal has no power to waive the requirement nor does it have any discretion in this matter. It is unable to find that he meets the requirements of cl.485.212 on the evidence before it.

15. As the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations, he therefore does not satisfy the criteria for the grant of a Subclass 485 visa. Accordingly, the decision under review will be affirmed.

    DECISION

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

    Wan Shum
    Member