Somvangxay (Migration)

[2020] AATA 2862

Somvangxay (Migration) [2020] AATA 2862 (1 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Khounthavy Somvangxay

CASE NUMBER:  1928355

DIBP REFERENCE(S):  BCC2019/3957632

MEMBER:Roslyn Smidt

DATE:1 June 2020

PLACE OF DECISION:  Sydney

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

Statement made on 01 June 2020 at 2:27pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –English language proficiency requirement not met –decision under review affirmed

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 9 August 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 18 September 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 1 June 2020 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Lao and English languages.

5. The applicant was represented in relation to the review by his 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 which specifies the following language tests:

   ·     International English Language Test System (IELTS) test;

   ·     Test of English as a Foreign Language internet-based test (TOEFL iBT);

   ·     Pearson Test of English Academic (PTE Academic); or

   ·     Cambridge English: Advanced (CAE) test; or

   ·     Occupational English Test

9. These tests must have been undertaken within the three years before the day on which the application was made.  In the case of the IELTS test the applicant must achieve and overall score of at least 6.

10. The passports specified in relation to 485.212(b) are passports from the United Kingdom; the United States of America; Canada; New Zealand; or the Republic of Ireland.

11. In the present case, the applicant provided evidence that he had undertaken an IELTS test on 27 July 2019 and achieved an overall score of 5.5.  Following lodgement of his application he provided evidence that the had completed a PTE Academic test on 7 September 2019.

12. At the hearing I explained the relevant requirements to the applicant and observed that it appeared that he did not meet cl.485.212(a) as he did not hold an appropriate passport, the score achieved in his IELTS did not meet the minimum requirement which was a score of 6 overall and the PTE Academic test was undertaken after he lodged his application and therefore could not be considered in assessing his application.  The applicant confirmed that he had never held any of the specified passports and that he had achieved a score of 5.5 in the test conducted on 27 July 2019. He said that he understood that this did not meet the requirements set out in the regulations.

13. It is clear from the evidence set out above that the applicant has not achieved the specified score in a language test specified in the relevant instrument within the period of three years prior to lodgement of his application. Therefore cl.485.212(a) is not met.

14. The applicant has never held a passport of a type specified, and as such cl.485.212(b) is not met.

15. The Tribunal is therefore not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

    CONCLUSION

16. 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

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

    Roslyn Smidt
    Member