Singh (Migration)

[2018] AATA 5949

Singh (Migration) [2018] AATA 5949 (8 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Atinder Pal Singh

CASE NUMBER:  1816436

DIBP REFERENCE(S):  BCC2018/1250938

MEMBER:Kate Millar

DATE AND TIME OF

ORAL DECISION AND REASONS:          8 November 2018 at 3:57 pm (SA time)

DATE OF WRITTEN RECORD:                29 November 2018

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal affirms the decision under review.

Statement made on 29 November 2018 at 6:52pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – required English language proficiency – no specified English language test within 3 years before application – IELTS test after application – completion of nursing course in English – incorrect advice by migration agent – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 17 May 2018 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 8 November 2018 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

   As I said, I was taking a moment to consider your matter and what you have told me today and I am in a position to make a decision and to tell you that decision now.  What that means is the decision has now been made and there is no further opportunity to tell me more about your circumstances.  This the reasons for decision, oral reasons for decision, given in South Australia at 3.57 pm.  The applicant is Mr Atinder Pal Singh.  The case number is 1816436.

   This is an application for a review of a decision made by a delegate of the Minister for Immigration to refuse to grant you a skilled provisional class VC visa under section 65 of the Migration Act 1958. 

   You applied for the visa on 15 March 2018. Visa class VC contains sub-class 485 and the criteria for the grant of this visa are set in part 485 of schedule 2 to the Migration Regulations 1994. To be granted the visa, you have to meet the primary criteria listed in part 485 of schedule 2. The delegate refused the visa on 17 May 2018 because the delegate was not satisfied that you provided evidence of the required English language proficiency.

   The issue in this case is whether you satisfy clause 485.212.  This requires that the application was accompanied by evidence that you had undertaken a language test specified in an instrument, and have achieved within the period specified in the instrument, the score specified in the instrument and in accordance with any specified requirements or that you hold a passport of a type specified by the minister.

   The relevant instrument specifying language test, scores, relevant periods and passport is IMMI 15/062.  In this case, there is no evidence that you held a passport of the type specified in that instrument and as such clause 485.212(b) is not met and you must satisfy clause 485.212(a). 

   Instrument IMMI 15/062 requires that the relevant English language test is to have been conducted within the three years before the day on which the application was made.

   You provided an English language test dated after the application was made and you also provided an English language test from 2011 that does not meet the English language requirements.  You said you recognised that the 2011 test was too old when you applied for the visa.  On your application, you answered that you had not undertaken a relevant test within three years before the date of the application.

   You told me today that you went and saw a migration agent because you sought specialist knowledge, and you said you were advised by your migration agent that because you completed nursing in English language you did not need an English language test and that even if you did, that the department would give you an opportunity to sit that test.  In support of your evidence, you have provided various screenshots of messages from your migration agent, most of which are requests from your agent to you to provide your latest English language test results.

   This does not, in itself, show what the particular advice was.  You have said you were misguided by your agent. 

   You have been living in the Northern Territory for seven years and you are a nursing assistant in mental health.  I heard from your partner, Larinda, who said that you had used a registered agent and it was disappointing that you were given incorrect information.

   While I appreciate that is the case, the legislation is clear on what is required and does not give me the discretion not to apply this requirement.  Your application was not accompanied by evidence that you met the English language requirements.  As a result, you do not meet clause 485.212 and that means that I have to affirm the decision that is under review. 

   You have also requested that your matter is referred to the minister on the basis that you were misguided by the agent.  I will not, myself, refer it to the minister but that does not prevent seeking the intervention of the minister if you wish to do so. 

   My decision today is to affirm the decision not to grant you a skilled provisional or class VC visa.  If you do not agree with my decision, you have a further right of appeal to the Federal Circuit Court on a question of law. 

   DECISION

3. The Tribunal affirms the decision under review.

   Kate Millar
   Member