Sidhu (Migration)

[2018] AATA 1794

Sidhu (Migration) [2018] AATA 1794 (30 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Balveer Kaur Sidhu
Mr Kulwant Singh
Master Yashkirat Singh

CASE NUMBER:  1719303

DIBP REFERENCE(S):  BCC2017/2247971

MEMBER:Karen Synon

DATE:30 April 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 30 April 2018 at 10:46am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – Minimum overall score – Pearson Academic Test – Rescore of test – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
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 Immigration to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 20 June 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 visas on 4 August 2017 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants applied for review of the primary decision on 24 August 2017 and provided a copy of the department decision.

5. The applicants appeared before the Tribunal on 10 April 2018 to give evidence and present arguments.  The Tribunal received oral evidence from the applicant and the second named applicant.  The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

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 agreed at the hearing that she did 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. The primary decision records that the applicant provided to the department, in support of her visa application, the results of a PTE Academic test taken on 1 March 2017 with an Overall Score of 49.  Legislative instrument 15/062 states that the Minimum Overall Score for a PTE Academic test is 50.  Invited to comment on this at the hearing the applicant said when you compare it with IELTS, you need 6 in every section and the Pearson test was new and she just thought she had to get 6 in each section; she did not know she had to get 50.  She was just one mark short.  She spoke to her agent and he said it was fine and she could lodge the visa application otherwise she would have waited.  Her agent should have told her and she would have waited and lodged later when she had the results.  She trusted her agent and got the wrong advice.

10. In fact she thought she would take another test and had prepared for the test and taken the PT classes because she thought the MRT review (the hearing) would be in a year.  She sat the test on 8 April but does not have the result yet.  The Tribunal noted that the result of any further Pearson Academic (or any other English language) test, cannot make any difference to the outcome of this review.  She said she now understands this but she was not aware of this before because she consulted an agent who said she would be fine and it is not her fault.  The secondary applicant supported his wife’s evidence that the agent gave the wrong advice.

11. The secondary applicant asked if they could apply for a remark of the test because it is only short 1 mark.  The Tribunal said it doubted she would be able to have a test from March 2017 rescored now but, because it was not sure of review limitations on Pearson Academic tests, it granted additional time until the close of business on 12 April 2018 for the applicant to make these enquiries and, if she able to, apply for a rescore of the 1 March 2017 test and provide this evidence to the Tribunal.

12. The Tribunal asked the applicant if she now understands that because she only scored 49 on her Person Academic test and if she cannot get a rescore of this test to reflect a mark of 50, that the Tribunal will not be able to make a decision in her favour.  She said yes.

13. On 12 April 2018 the applicant relevantly advised that she had contacted PTE and was able to book a rechecking/rescoring of her PTE exam and requested additional time to have the score rechecked.  She provided an invoice recording payment of USD $125 for a “PTE-A Rescore”.  This invoice does not indicate that the test being rescored is the test of 1 March 2017.

14. On 17 April 2018 the Tribunal contacted the applicant by email asking that she provide evidence that the Pearson Academic Test which is being rescored is the test she sat on 1 March 2017.  It noted that this information is not included on the receipt provided and the Tribunal notes that the information publically available on Pearson's Academic website states that "[t]o order a rescore, you must contact Pearson Customer Service within 14 calendar days of your score report being made available to you".  The website also states "[y]ou may only request a rescore of your most recent PTE Academic test.  You cannot request a rescore if you have already either scheduled another test or sent your score to an institution".  The Tribunal advised that before it determines whether to grant additional time for the proposed rescore, it requires written assurance that the test being rescored is the 1 March 2017 test.

15. On 19 April 2018 the applicant wrote to the Tribunal saying that she had talked with Pearson regarding the recheck of her PTE test of 1 March 2017 and Pearson has “demanded a few days’ time during which they can talk to their higher officials regarding rechecking of my exam” and on this basis requested an additional week to provide the Tribunal with the requested information.  On 20 April 2017, the Tribunal granted additional time “to submit the requested written assurance that the Pearson Academic Test that is being rescored is the test sat on 1 March 2017” advising this information is now required by 27 April 2018.

16. On 30 April 2018 the applicant wrote to the Tribunal thus:

    As per the Department’s criterion, I was informed that if I proceed with the re-assessment of my previous English proficiency test, I would be provided with a time-frame for my re-assessment.  Though unfortunately, when I contacted PTE, they stated that I cannot proceed with the re-assessment of such a test that as conducted a considerable amount of time before.  But this does not mean that I am not putting in dedicated efforts for the same.  I am determined towards meeting the required criterion.  I possess the required skills and abilities to meet the English language criterion.

    Under such circumstances, I have proceeded with the only option which was left me.  I have proceeded with the booking for the re-assessment of my most recent (sic).  I really hope that I will be given the time required for the outcome of this re-assessment, as I think at the time of the decision, I will be given the opportunity to prove my English proficiency, and that I have the required capability to meet the English criterion.  I make a sincere request to the respective Department to kindly provide me with the chance of proving my capability and that I possess the ability and skills to suffice to the respective criterion.

17. The Tribunal notes that it discussed with the applicant at the hearing that the result of any further Pearson Academic (or any other English language) test, cannot make any difference to the outcome of this review.  Noting the applicant’s advice that she cannot get her Pearson Academic Test of 1 March 2017 rescored but has applied for a rescore of her most recent test (presumably the one she sat on 8 April 2018), the Tribunal has proceeded to decision.

18. The evidence before the Tribunal as documented in the primary decision is that the visa application was not accompanied by evidence of the applicant having undertaken an English language test specified by the Minister within the period specified, which is three years before the day on which the application is made, and achieved the score specified by the Minister. Consequently, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

19. 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.

20. As the applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, the secondary applicants also do not satisfy the secondary criteria for the grant of the visa, in particular cl.485.311 which requires that an applicant must be a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

    DECISION

21. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Karen Synon
    Member