Shanbhag (Migration)

[2018] AATA 5129

Shanbhag (Migration) [2018] AATA 5129 (19 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ankur Shanbhag

CASE NUMBER:  1825844

DIBP REFERENCE(S):  BCC2018/2794753

MEMBER:Alison Mercer

DATE:19 December 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 19 December 2018 at 6:31pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – subclass 485 – English language proficiency – not holder of specified passport – English test undertaken after visa application – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351

Migration Regulations 1994, Schedule 2, cl 485.212(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 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 25 July 2018. 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). 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 20 August 2018 because the applicant did not have the required English language proficiency. The delegate noted that the applicant did not hold a specified passport. She further noted that although the applicant had ticked ‘yes’ to the question of whether he had undertaken a specified English test in the 36 months before making his visa application, the PTE Academic English test that he provided on 9 August 2018 was undertaken on 3 August 2018, after he made his visa application. The delegate therefore found that the applicant did not satisfy cl.485.212(a) or (b).

4. The Tribunal received a review application from the applicant on 5 September 2018. It was accompanied by a copy of the delegate’s decision and an authority by which the applicant appointed a registered migration agent as his representative and authorised recipient for correspondence.

5. On 30 October 2018, the Tribunal wrote to the applicant via his agent to invite him to a hearing on 27 November 2018. The applicant was requested to provide any evidence in support of his case prior to the hearing. The Tribunal set out the English proficiency requirements for the subclass 485 visa in detail in the hearing invitation letter, listing the specified tests and the required scores for each test, and noting that the specified test had to have been undertaken in the 3 years before the day on which the visa application was made.

6. On 23 November 2018, the applicant’s agent sought to reschedule the hearing on the grounds that the applicant was currently overseas after his recent marriage. On the same date, the Tribunal requested clarification of when the applicant was due back in Australia (as this had not been provided) and indicated that if the applicant was not due back for some time, the Tribunal’s intention was to keep the hearing date as 27 November 2018 and give the applicant the option of participating by telephone from India.

7. On 26 November 2018, the applicant’s agent advised that the applicant had returned to Australia and would attend the hearing in person.

8. The applicant appeared before the Tribunal on 27 November 2018 to give evidence and present arguments. The Tribunal also received oral evidence from his friend, Mr Siddhartha Arvind Mamledesai.  

9. At the commencement of the hearing, the applicant provided a number of documents to the Tribunal, including:

   ·evidence of his recent travel to India to be married on 20 November 2018, including airline bookings, photographs and his marriage certificate;

   ·Test of English as a Foreign Language (TOEFL) test result for the applicant, test date 2 March 2014;

   ·grant letter from the Department dated 6 April 2018 to the applicant for a subclass 500 (Student) visa, for visa valid to 30 July 2018;

   ·PTE Academic Test Taker Score Reports for the applicant, test dates 3 August 2018 and 19 November 2018 respectively; and

   ·booking receipt issued 25 July 2018 for PTE test to be undertaken by the applicant on 3 August 2018.

10. The applicant told the Tribunal that he did the TOEFL test in March 2014 as it was one of the requirements he had to meet to be granted his original student visa to come to Australia to study. He explained that he went to India in July 2018, and became engaged there on 21 July 2018. He returned to Australia on 24 July 2018, so had only a short time to make his subclass 485 visa application before the expiry of his student visa on 30 July 2018.  He had intended to use his 2014 TOEFL test to meet the English requirements for the subclass 485 visa application, but realised that these results were more than 3 years old by then. He therefore booked, on 25 July 2018, to sit a PTE Academic English test, but the earliest sitting date available was for 3 August 2018.  He did sit the test then and achieved the required scores.

11. The Tribunal discussed with the applicant the fact that, even though the PTE test booking was made before he lodged his subclass 485 visa application, the PTE test itself was undertaken after the visa application date, which meant that the Tribunal was unable to take it into account for the purposes of cl.485.212. It queried why the applicant had undertaken a further PTE test in November 2018. The applicant explained that he returned to India in November 2018 to get married (this was the legal marriage, but the big family celebration of it was to be held in India in February 2019) and while there, undertook a further PTE Academic English test. He wanted to improve his scores as he intended to apply for Australian permanent residence in the subclass 189 and 190 visa programs. He was waiting to be invited to apply for these visas, and had calculated that he should meet all the necessary requirements. However, they were offshore visas, and it would have a significant adverse effect on him now if his subclass 485 visa application was refused and he had to leave Australia, even if it were for approximately 6 months or so. This was because he was currently working for an Australian employer, and would have to leave this employment. The applicant stated that he had studied hard to obtain his Masters of IT degree in Australia, and that it had been hard to find work after this, but he had persisted. The applicant also stated that he was now married so had a responsibility to support his wife.

12. The Tribunal discussed with the applicant the fact that it did not consider that it had any obligation to defer making a decision on the subclass 485 visa review application on the basis that the applicant wished to pursue other visa options, although it was sympathetic to his circumstances. The applicant asked the Tribunal to consider referring the matter to the Minister for consideration of the exercise of the Ministerial discretion powers in s.351 of the Act.

13. The applicant’s friend Mr Mamledesai spoke of his friend’s good character and study achievements and confirmed the applicant’s family circumstances, in particular his recent marriage.

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

    CONSIDERATION OF CLAIMS AND EVIDENCE

15. 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)).

16. 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. Accordingly, the applicant must meet cl.485.212(a).

17. Based on the evidence before it, the Tribunal makes the following findings:

    ·the applicant sat a TOEFL internet-based test (IBT) on 2 March 2014, in which he obtained a total score of 87, with scores of 17 for reading, 25 for listening, 22 for speaking and 23 for writing;

    ·the applicant applied for a subclass 485 visa online on 25 July 2018. In the online visa application, the applicant indicated that he had undertaken a specified English test in the last 3 years;

    ·on 9 August 2018, the applicant provided evidence of having sat a PTE Academic English test on 3 August 2018 (which he booked on 25 July 2018), in which he obtained an overall score of 71, with scores of 70 for listening, 71 for reading, 89 for speaking and 67 for writing; and

    ·the applicant provided to the Tribunal another PTE Academic English test taker score report indicating that he obtained an overall score of 76 (with individual scores of 72 for listening, 76 for reading, 68 for writing and 90 for speaking) in a test he took on 19 November 2018.  

18. Item 1 of IMMI 15/062, the relevant written instrument, specifies that both a TOEFL IBT and a PTE Academic English test is acceptable for the purposes of cl.485.212(a)(i). Item 3 of IMMI 15/062 specifies that, for a PTE Academic English test, the required minimum overall score is 50 points, with a minimum of 36 for each of the 4 test components. The Tribunal is satisfied that the applicant’s PTE Academic test results of 3 August 2018 and 19 November 2018 exceeded these scores. 

19. Item 3 of IMMI 15/062 specifies that, for a TOEFL IBT, the required overall score is 64 points, with a minimum of 4 for listening, 4 for reading, 14 for speaking and 14 for writing. The Tribunal is satisfied that the applicant’s TOEFL IBT test result of 2 March 2014 exceeded these scores. 

20. However, item 4 of IMMI 15/062 specifies that these tests (or any of the other specified English tests) must have been undertaken by the applicant within the 3 years before the day on which his visa application was made (that is, in the 3 year period immediately before 25 July 2018 – between 24 July 2015 and 24 July 2018).

21. The Tribunal finds that the applicant’s 2 PTE Academic English tests were undertaken on 3 August 2018 and 19 November 2018. As such, these tests were undertaken after he made his subclass 485 visa application. The Tribunal acknowledges that the booking for the test of 3 August 2018 was made on 25 July 2018 (the visa application date) but item 4 expressly requires that the test itself must have been undertaken in the 3 year period prior to the visa application date.

22. Similarly, the Tribunal acknowledges that the applicant undertook a TOEFL IBT test prior to making the visa application, but finds that it was undertaken more than 3 years before he applied for the subclass 485 visa, and thus it does not satisfy item 4 of IMMI 15/062 either.

23. The Tribunal is required to be satisfied that the applicant meets cl.485.212(a) in the way specified in IMMI 15/062.  It has found that he did not, and cannot now do so due to the temporal limitation in item 4 of that instrument. The Tribunal acknowledges that the applicant is dismayed that this failure has led to the refusal of his visa application (particularly in circumstances where he has undertaken his education in English and has specified English tests before and after the relevant 3 year period in which he obtained the required scores) but notes that there is no discretion in the Act or Regulations to overlook or waive the combined requirements of cl.485.212(a) and IMMI 15/062.

24. Accordingly, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

25. 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.

26. The Tribunal notes that it remains open to the applicant to seek Ministerial intervention pursuant to s.351 of the Act, which gives the Minister a personal, non-compellable power to intervene after an unsuccessful review application to grant a person a visa if the case involves unique and/or compelling circumstances. The guidelines for s.351 requests are set out on the Department’s website: >

    On the evidence before the Tribunal, it is not satisfied that the circumstances of the applicant’s case meet these guidelines but notes that it remains open to the applicant to apply directly and to provide any additional information he believes meets the Ministerial Guidelines or otherwise raises compelling or unique factors.

    DECISION

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

    Alison Mercer
    Member