Singh (Migration)

[2018] AATA 2822

Singh (Migration) [2018] AATA 2822 (21 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Jatinder Singh
Mrs Amandeep Kaur
Mr Samar Singh

CASE NUMBER:  1802249

DIBP REFERENCE(S):  BCC2017/3902350

MEMBER:Amanda Mendes Da Costa

DATE:21 June 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 21 June 2018 at 1:08pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant has the required English language proficiency – Where applicant’s test results do not meet the overall minimum requirements – Decision 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 23 October 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 15 January 2018 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 15 June 2018 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages.

5. The applicants were represented in relation to the review by their registered migration agent.

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, 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. As such the applicant must meet cl.485.212 (a).

9. The Tribunal finds that the specification in the instrument created a three year period in which any specified English language test could be undertaken the results of which could be used to satisfy cl.485.212, and that the period ended with the arrival of the day on which the visa application was made: 23 October 2017.

10. The Tribunal notes that on the application form the applicant provided the Test Reference Number 323993789 for a Pearson Test of English Academic (PTE Academic) test which was undertaken on 19 October 2017.  On 23 December 2017 the applicant uploaded to his Immigration Account, the PTE Academic Test Taker Score Report with an overall score of 46 and component scores of Listening 38, Reading 46, Writing 37 and Speaking 68.  These results show that the applicant did not achieved the overall minimum score of 50 which is the overall minimum score required in the relevant instrument.

11. In his oral evidence, the applicant told the Tribunal that he had been suffering from pain and lack of movement in his wrists which affected his ability to complete a written English language test within the specified period.  In support of  his evidence, the applicant provided the Tribunal with a letter from his general practitioner dated 14 June 2018, stating as follows:

    “Jatinder has been suffering from bilateral tenosynovitis of the wrists since July 2016 for which he has been seeing me regularly.  It affects his ability to grip things and causes pain intermittently.”

12. The Tribunal accepts that the applicant has experienced some pain and lack of movement in his wrists.  However, that does not affect the Tribunal’s finding that the applicant has not undertaken a specified language test within the specified period in which the applicant achieved the minimum specified scores.

13. As the applicant does not satisfy the primary criteria for the grant of a Skilled visa, the secondary applicants cannot meet the criteria for a Subclass 485 visa as members of the family unit of a person who has satisfied the primary criteria.   

14. On the basis of the above, the applicants do not meet the requirements of cl.485.212 of Schedule 2 to the Regulations and therefore do 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.

    DECISION

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

    Amanda Mendes Da Costa
    Member