SOK (Migration)

[2020] AATA 462

SOK (Migration) [2020] AATA 462 (8 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr DARA SOK
Ms SOKUNTHY KEO
Ms SOKUNTHYDAVANN DARA
Ms SOKUNTHYDAROTH DARA
Mr DANIEL DARA

CASE NUMBER:  1924336

DIBP REFERENCE(S):  BCC2019/3506850

MEMBER:Denise Connolly

DATE:8 January 2020

PLACE OF DECISION:  Sydney

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

Statement made on 08 January 2020 at 9:14am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirements – Pearson Test of English Academic –did not achieve minimum score – Tribunal has no discretion – decision under review 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 12 July 2019. Visa Class VC contains Subclass 485. 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 26 August 2019 because the first named applicant (the applicant) did not meet the English language requirements.

4. The applicant appeared before the Tribunal on 16 December 2019 to give evidence and present arguments.

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, there is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

9. The relevant instrument specifies among other things that the specified English language test must have been undertaken within the 3 years before the day on which the application was made and, if the applicant is seeking to rely on a Pearson Test of English Academic (PTE Academic), the specified scores are minimum scores of 36 in each test component and a minimum overall score of 50.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the visa application the applicant answered ‘Yes’ to the question ‘Have you undertaken an English test within the last 36 months?’. On 22 August 2019 the applicant uploaded his PTE Academic test taker score report for the test undertaken on 28 February 2019 (in the specified period) in which he scored 52 for writing, 50 for speaking, 50 for reading, 49 for listening and an overall score of 49.

11. The delegate found the applicant achieved an overall score of 49, which is below the minimum allowable score as stipulated in the legislative instrument. Therefore, the applicant did not satisfy cl485.212(a)(ii).  

12. At the hearing the Tribunal discussed with the applicant the requirements of law, in particular the requirement that the minimum overall score for a PTE Academic test is specified as 50. It explained that as the applicant achieved only 49 for his minimum overall score he did not meet that requirement. The Tribunal asked the applicant if he had asked the Pearson Test of English Academic provider to review his test results. He indicated that he had asked them to do this but they had told him it involves a very complicated algorithm and they did not undertake the review because his request was too late. The Tribunal asked him to confirm that his request to Pearson for review was too late. He indicated that after he received the results he made enquiries about how the scores were calculated because he believed the minimum overall score was calculated by dividing by 4 the sum of his minimum scores in each test component. Pearson sent him documents about the score criteria. By the time he sought review it was too late. He cannot remember the period in which he needed to seek review but he does not think he asked in time. He believes he has a good enough English to be employed in Australia. While he now understands the law he hopes in his circumstances the Minister will make a favourable decision. He believes the PTE Academic test scoring is too complicated and unreliable and that they should make the score algorithm clearer to the test sitter. The Tribunal explained that it does not have any discretion to make a favourable decision if the applicant does not meet the requirements as set out in the relevant instrument.

13. On the basis of the evidence before it the Tribunal is satisfied the applicant undertook a specified test, the PTE Academic test, on 28 February 2019, that is, in the specified period. However as he achieved only 49 as his minimum overall score he did not achieve the score specified by the Minister in the relevant instrument. Accordingly the Tribunal is not satisfied the application was accompanied by evidence that the applicant has achieved, within the specified period, the score specified by the Minister. He therefore does not meet cl.485.212(a)(ii) and the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

14. 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

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

    Denise Connolly
    Member