Tayal (Migration)

[2020] AATA 3849

Tayal (Migration) [2020] AATA 3849 (6 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Shivam Tayal

CASE NUMBER:  1919244

DIBP REFERENCE(S):  BCC2019/3314141

MEMBER:Warren Stooke AM

DATE:6 July 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 06 July 2020 at 11:35am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – completing English exam prior to application – relevant passport – 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 2 July 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 8 July 2019 because the applicant did not have the required English language proficiency.

4. 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: “The application refused because one of criteria was to sit for an exam before the application is submitted”

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

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 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).

9. The applicant is a 24 year old from India, who provided evidence that he arrived in Australia in February 2017 and is a current holder of a Bridging Visa A following the expiry of his Student visa on 6 July 2019.

10. The applicant provided evidence that he completed a PTE English language test on 12 July 2019, with a score of 73 and that this was the only English examination he had undertaken. The applicant stated that as soon as he got the delegate’s decision has booked his English language test the same day.

11. The applicant confirmed to the Tribunal in evidence that he did not provide documentation to the Department that any English language test had been undertaken.

12. The Tribunal asked the applicant if he understood the requirements of cl.485.212 and read out the content relating to exempt countries. In this regard, the applicant provided evidence, with his application, that he is the holder of a passport from India.

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

14. The Tribunal is satisfied, that based upon the evidence before the Tribunal, wherein the applicant provided evidence that a test was undertaken on 12 July 2019 (which was post the date of application of 2 July 2019) the applicant does not satisfy the English language requirements of cl.485.212(a).

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

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.

    Warren Stooke AM
    Member