Syed (Migration)

[2020] AATA 3261

Syed (Migration) [2020] AATA 3261 (18 June 2020)

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DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Basheeruddin Khadri Syed

CASE NUMBER:  1915983

DIBP REFERENCE(S):  BCC2019/2079004

MEMBER:Warren Stooke AM

DATE:18 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 18 June 2020 at 11:44am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – most recent IETLS Test expired –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 22 April 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 5 June 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 16 June 2020 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that he had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that he understood that the reason for the refusal to grant his visa for temporary residence was because his IELTS had expired on 31 March 2019.

6. The applicant confirmed to the Tribunal that he had provided a copy of the decision to the Tribunal with his application.

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 of the Register of Instruments - Skilled visas. 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).

10. The applicant is a 25 year old from India, who provided evidence that he had an English IELTS test result that was valid until its expiry on 31 March 2019.

11. The applicant stated that he was guided by his friends and did not seek to undertake a further IELTS Test prior to his application for a 485 visa on 22 April 2019.

12. The applicant provided evidence to the Tribunal that it was a mistake in submitting his application on 22 April 2019.

13. The applicant confirmed to the Tribunal that subsequent to submitting his application for a 485 visa he undertook on IELTS Test on 11 June 2019, which he claimed he booked on 16 April 2019. [Department File: Doc – 5843417]

14. The Tribunal put to the applicant: “At the time of application you did not have a valid IELTS Test. Is that correct? The applicant responded: “Yes. That is correct.”

15. The applicant stated to the Tribunal that he wanted to do a master’s and that he could not do his PhD because of that. He asked the Tribunal to provide him with an opportunity to do his PhD before he went home and to please consider his application.

16. The Tribunal is satisfied on the basis of the evidence provided by the applicant, that his most recent IETLS Test expired on 31 March 2019 and that the applicant did not submit evidence of having undertaken an English language test specified by the Minister in cl.485.212.

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

18. 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

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

    Warren Stooke AM
    Member