The (Migration)

[2020] AATA 2309

The (Migration) [2020] AATA 2309 (25 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Lianah The
Mr Danny Danny
Miss Padma Viriya Khanti

CASE NUMBER:  2001952

DIBP REFERENCE(S):  BCC2019/5452485

MEMBER:Michelle East

DATE:25 May 2020

PLACE OF DECISION:  Perth

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

Statement made on 25 May 2020 at 12:37pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Graduate Work stream – skills assessment – English language proficiency – specified English test not undertaken – no discretion – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cls 485.212, 485.223

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 on 16 January 2020 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 30 October 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 visas because the first named applicant (the applicant) did not satisfy cl.485.223 of Schedule 2 to the Regulations because she had not applied for a skills assessment prior to the date of the visa application as is required for the Graduate Work stream of the visa for which she had applied.

4. The applicant appeared before the Tribunal by telephone on 19 May 2020 to give evidence and present arguments.  The Tribunal exercised its discretion to hold the hearing by telephone.  The hearing was held during the COVID-19 pandemic.  The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant.  The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The Tribunal is satisfied that the applicant was given a fair opportunity 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 applicant’s visa application states that she applied for the visa seeking to satisfy the primary criteria for the Subclass 485 visa in the Graduate Work stream.  The delegate determined that a criterion for the visa in that stream was not satisfied because the applicant had not applied for a skills assessment prior to the date of the visa application as required for the stream.

7. When reviewing the application for review it came to the Tribunal’s attention that the applicant had answered no’ to the following question in her visa application:

   Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate that you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement.

8. In order to satisfy cl.485.212 the application must be 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 is IMMI 15/062.  Several alternative language tests are specified which must have been undertaken within the three years before the day on which the application was made and demonstrates the minimum scores as provided for in the instrument.

10. These criteria are common to both the Graduate Work stream and the Post Study work stream and must be satisfied to be eligible for either visa.

11. The information that the applicant did not either hold the relevant passport or had undertaken the relevant English test was provided as part of the visa application and therefore was provided to the Department in writing during the process that led to the decision under review.  The Tribunal was therefore not required to put this adverse information to the applicant pursuant to section 359AA of the Act as the information falls within the exception in section 359(4)(ba).

12. Nevertheless, the Tribunal clearly explained to the applicant what it regarded as a fatal issue in her application.

13. The passports specified in IMMI 15/062 are passports of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland (cl.485.212(b)).

14. At the hearing the applicant confirmed that she does not hold a passport from those countries and therefore cl.485.212(b) is not met.

15. Furthermore, the applicant agreed at the hearing that she had not sat any of the specified English tests in IMMI 15/062 at any time in the three years prior to making her visa application.

16. The Tribunal notes that the applicant has been awarded a Bachelor and Masters’ Degree as well as a doctorate and clearly has a high level of English competency.  As explained to the applicant at hearing however, there is no discretion available to the Tribunal in these circumstances.

17. The Tribunal therefore finds that the applicant applied for her visa on 30 October 2019.  She does not and did not at the time hold a current passport for the USA, UK, Canada, New Zealand or the Republic of Ireland.  There is no evidence accompanying the visa application that she held a specified passport or that she had undertaken a specified English test within the specified period.  Further she did not undertake a specified English test and achieve the specified score within the three years before the day on which the application was made (IMMI 15/062, paragraph 4).

18. On this basis the Tribunal is not satisfied that the application was accompanied by evidence that the applicant held a specified passport or that she had undertaken a specified English test and achieved the relevant score within the specified period.

19. As the issue regarding the English language proficiency is determinative in this matter, the Tribunal does not need to address the issue of the skills assessment.

20. The Tribunal therefore finds that the applicant does not satisfy cl.485.212.

21. On the basis of the above findings, the Tribunal finds that the applicant 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.

22. As the second and third named applicants are not members of a family unit of a person who meets the primary criteria, they cannot satisfy cl.485.311.

    DECISION

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

    Michelle East
    Member