SINGH (Migration)

[2017] AATA 3096

SINGH (Migration) [2017] AATA 3096 (3 April 2017)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr JAGDEEP SINGH

CASE NUMBER:  1617326

DIBP REFERENCE(S):  BCC2016/2729838

MEMBER:Rania Skaros

DATE:3 April 2017

PLACE OF DECISION:  Sydney

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

Statement made on 03 April 2017 at 9:46am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – English language requirements – Did not undertake a relevant test within the required time period

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 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 17 August 2016. 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 29 September 2016 because the applicant did not meet the English language requirements in cl.485.212.

4. The applicant provided a copy of the delegate’s decision record to the Tribunal.

5. The applicant appeared before the Tribunal on 24 March 2017 to give evidence and present arguments. 

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.

10. In the visa application it was indicated that the applicant does not hold a current passport from one of the specified countries and that he had not undertaken an English test within the last 36 months that demonstrates the English language requirement.

11. 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).

12. On 14 September 2016 the applicant provided to the Department a copy of a Pearson Test English (PTE Academic) test results which indicated that the applicant had undertaken the PTE test on 2 September 2016, which the Tribunal notes was after the application was made.

13. The Instrument prescribes that a PTE Academic test is specified for the purposes of cl.485.212(a), that an overall score of at least 50, with not less than 36 in each of the 4 test components, is required and that the test must have been undertaken within the 3 years before the day on which the application was made.

14. Although the applicant had achieved the specified scores in the PTE test he undertook on 2 September 2016, these scores were not achieved in a test undertaken within 3 years before the day on which the application was made.

15. At the hearing the applicant confirmed that he had undertaken the PTE test after the visa application was lodged and indicated that he understood the requirements. He stated that he needs to attend the graduation ceremony in September 2017. The Tribunal explained to the applicant that it would not be appropriate in the circumstances of his case to delay making the decision as there would be no merit in doing so given he had not sat the English test in the three years prior to the lodgement of the visa application. The applicant asked if he could get another visa. The Tribunal explained to him that he would need to seek immigration advice about his eligibility for another visa as it is not the role of the Tribunal to advise on such matters.

16. The Tribunal finds on the evidence that the application was not accompanied by evidence that the applicant had undertaken the specified language test within the specified period of three years before the day on which the application was made. Consequently, the applicant does not satisfy the requirement in cl.485.212(a).

17. 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.

    DECISION

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

    Rania Skaros
    Member