Thomas (Migration)

[2021] AATA 4128

Thomas (Migration) [2021] AATA 4128 (26 August 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Alphy Thomas
Mr Linu MONACHEN PANUVELIL
Miss Evana Rose LINU
Miss Averin Ann LINU

CASE NUMBER:  2006207

HOME AFFAIRS REFERENCE(S):          BCC2020/159167

MEMBER:Nicola Findson

DATE:26 August 2021

PLACE OF DECISION:  Perth

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

Statement made on 26 August 2021 at 3:54pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – Occupational English Test (OET) – required minimum score not achieved – PTE Academic – undertaken after the visa application was lodged – no discretion to waive the requirement – 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 Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 24 January 2020. 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 (Cth) (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 23 March 2020, because the first named applicant (the applicant) did not meet the English language requirements.

4. The applicant appeared before the Tribunal on 12 May 2021, 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 applicant did not raise any concerns in relation to holding a telephone hearing.  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 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 IMMI15/062. 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. Therefore, the applicant must meet cl.485.212(a).

8. The applicant has provided to the Tribunal a copy of the delegate’s decision record, for the purpose of the review.  The delegate’s decision records that in the applicant’s visa application, she answered “yes” to the question “Have you undertaken an English test within the last 36 months?” to demonstrate that she has at least competent English.  The delegate records that in support of the applicant’s claims to have met the English requirement, she provided details of an Occupational English Test (OET) (Reference: 104137892), undertaken on 11 August 2018. The delegate noted however, that the report recorded scores of Listening B, Reading C, Writing C+, and Speaking B, and therefore the applicant did not achieve the required minimum overall score of B for each of the English test components.  On the basis of this evidence, the delegate found that the applicant did not satisfy cl. 485.212(a)(ii) as she had not provided evidence of having achieved the specified score in an English test within the 3 years immediately before the day on which her application was made.

9. On 5 May 2021, the applicant provided a pre-hearing written submission to the Tribunal.  In that submission the applicant sets out the circumstances which led to her not meeting the English language requirement.  She explained that the results of an OET Test undertaken by her in an attempt to commence her nursing registration had accompanied the visa application. She conceded that she had not achieved the required minimum score of B for each of the components of the test.  However, she stated that she did not have any other option but to use these OET results, because she was unable to book another English test before her student visa expired. She explained that she did attempt to undertake another English test prior to lodging the visa application, however, “Covid-19 was surging” at around this time and test centres were heavily booked.  She stated that she took a Pearson Test of English (PTE) Academic, after the visa application was lodged, and in that test achieved an overall score of 65. 

10. In her submission the applicant also explained that in order to progress her nursing registration she needed to score a B in all components of the OET, or, achieve an overall score of 7 in the International English Language Test System (IELTS) or 65 in the PTE Academic. She highlighted that while scores of B in the OET are also required for a Subclass 485 visa, the scores specified for the IELTS (6) and PTE Academic (50) are lower. She asked the Tribunal to take into account the intensity of the OET test in comparison with the other English tests.  The applicant submitted that she is proficient in English and capable of working in the health industry “where English standards are high and equal for every test taker”.

11. At the hearing the Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirements the applicant had to provide evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  The Tribunal explained to the applicant that it appeared she had not provided evidence that she had achieved the specified score (for a OET a minimum overall score of a B, along with the other components of the test), undertaken in the specified period, that is within three years before the day on which the application was made.

12. The applicant reiterated the claims she had made in her written submission.  She said that she was concerned about lodging her application before the student visa she held at the time ceased (on 15 March 2021), and that she thought her OET would “be enough”.  She told the Tribunal that she had undertaken a PTE Academic in mid-2020 and achieved an overall score of 65.  She told the Tribunal that this score had allowed her to meet the standards of nursing registration by attaining proficient English, and to start the nursing registration process in Australia.  She noted that she had completed five of the seven stages of the nursing registration process.  She told the Tribunal that her husband is working in Australia and her two children have been going to school.  She is fearful that if she does not receive a favourable outcome, this will shatter her dream of working as a Registered Nurse at a time when the world is experiencing the Covid-19 pandemic and when nursing services are essential.     

13. The Tribunal explained to the applicant that while it is sympathetic to her circumstances, it does not have any discretion to waive the requirement that she meets cl.485.212 and the specifications set out in the relevant instrument.

14. On the evidence before it, the Tribunal accepts that the applicant has undertaken a language test specified in an instrument - an OET – within the specified period.  However, the applicant did not achieve the minimum score specified for the OET.  The Tribunal also accepts, on the evidence, that the applicant has undertaken a specified language test – a PTE Academic - and exceeded the scores specified for the PTE Academic.  However, this test was undertaken after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made.  The Tribunal is therefore not satisfied the visa 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.

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 applicants Skilled (Provisional) (Class VC) visas.

    Nicola Findson
    Member