Sng (Migration)

[2021] AATA 991

Sng (Migration) [2021] AATA 991 (29 March 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Athena Jie Qi Sng

CASE NUMBER:  1904844

DIBP REFERENCE(S):  BCC2018/6001601

MEMBER:Tim Connellan

DATE:29 March 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 29 March 2021 at 5:00pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – English language proficiency – test taken after application made and results provided to department – applicant departed Australia – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(ii)

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 7 January 2019. 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 1 March 2019 because the applicant did not have the required English language proficiency.

4. The applicant responded to the hearing invitation stating that she had left Australia and returned home to Singapore. She advised she would not attend the hearing and agreed to the Tribunal making a decision on the available evidence.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

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

8. In the present case, the applicant is the holder of a Singaporean passport and there is no evidence that she 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. Reading from the primary decision, a copy of which the applicant provided with her review application, it states:

   On 07 January 2019 the applicant lodged an online Temporary Graduate (Post Study Work Stream) (Class VC) (Subclass 485) visa application.

   On 01 March 2019, the application was assessed by an officer of the Department.
   The applicant declared “Yes” to the following declaration.  Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?

   It further states:
   Note: To meet the requirements for this visa you must hold a current passport from the USA,UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 months that demonstrates you have at least competent English.

   In support of her English language capability, the applicant provided the results of an International English Language Testing System (IELTS) that was taken on 19 January 2019, which is after the date on which the application was lodged. Therefore the applicant does not satisfy 485.212(a)(ii) as she undertook the English language test after the day of lodgement of the visa application.

10. From the evidence available to the Tribunal, the applicant provided the results of an English Language Test she completed after lodging the visa application which therefore cannot be considered.

11. There is no evidence that leads the Tribunal to be satisfied that the application was accompanied by evidence that she meets cl.485.212(a). 

12. 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

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

    Tim Connellan
    Member