Sharma (Migration)

[2018] AATA 3126

Sharma (Migration) [2018] AATA 3126 (18 July 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Sahil Sharma

CASE NUMBER:  1808091

DIBP REFERENCE(S):  BCC2017/4942525

MEMBER:Karen Synon

DATE:18 July 2018

PLACE OF DECISION:  Melbourne

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

·cl.485.212 of Schedule 2 to the Regulations.

Statement made on 18 July 2018 at 11:05am

CATCHWORDS
Migration – Skilled (Provisional ) (Class VC) – Subclass 485 (Temporary Graduate) – English language requirements – PTE Academic Test results provided – Decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), ss 65, 360
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 24 December 2017. 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 March 2018 because the applicant did not have the required English language proficiency.

4. The applicant was represented in relation to the review by his registered migration agent.

5. In accordance with s.360(2)(a) of the Act the Tribunal considered that it should decide the review in the applicant's favour on the basis of the material before it.

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

   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 stated in his visa application that he holds a passport of India and therefore does not hold a passport specified, being a passport of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, and as such cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

9. On 30 June 2018 the applicant provided to the Tribunal a copy of his PTE Academic results of a test undertaken on 11 August 2017, which is before he lodged his visa application on 24 December 2017.  This test and its results were verified by the Tribunal on 18 July 2018.

10. In this PTE Academic test of 11 August 2017 the applicant achieved an Overall Score of 52 with individual band scores of: Listening 52; Reading 52; Speaking 59; and Writing 50.  As this satisfies the English language standard specified in IMMI 15/062, the Tribunal is satisfied that the application was accompanied by evidence that meets cl.485.212(a).

11. 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 visa.

    DECISION

12. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.212 of Schedule 2 to the Regulations.

    Karen Synon
    Member