Tran (Migration)

[2018] AATA 1200

Tran (Migration) [2018] AATA 1200 (9 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nguyen Xuan Dat Tran

CASE NUMBER:  1728724

DIBP REFERENCE(S):  BCC2017/3125594

MEMBER:Alison Mercer

DATE:9 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 April 2018 at 3:08pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant has the required English language proficiency – Requirement for evidence of proficiency to accompany application – Applicant did not pass relevant test until after visa application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212(a)

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 29 August 2017. 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 2 November 2017 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and therefore did not meet cl.485.212(b). This meant that the applicant had to demonstrate his English proficiency by undertaking a specified test in the specified manner, as required by cl.485.212(a). The delegate noted that the applicant had stated in his online visa application that he undertook an International English Language Testing System (IELTS) test on 19 August 2017 but when asked to provide evidence of this on 19 October 2017, the applicant provided a booking for a PTE Academic English test on 19 November 2017. The delegate wrote to the applicant to advise him that any English test he intended to reply upon needed to have been undertaken in the 3 years before the date of his visa application. On 29 October 2017, the applicant provided an IELTS test reference for a test he took on 19 August 2017. However, when the results of this test were checked, the delegate found that the applicant had obtained an overall band score of 5.5, when the minimum required overall band score was 6.0. The delegate found that the applicant therefore did not satisfy cl.485.212(a) and could not be granted a visa.

4. The Tribunal received a review application from the applicant on 18 November 2017. It was accompanied by a copy of the delegate’s decision and various other documents, including:

• copy of the applicant’s letter of completion for his Master of International Business degree from La Trobe University, completed on 8 July 2017 and testamur for same;

• copy of the applicant’s overseas visitor’s and student’s health cover policies;

• copy of the applicant’s PTE Academic Test Taker Score Report issued on 15 November 2017 indicating that the applicant undertook a test on 14 November 2017 in which he obtained an overall score of 52, with scores of 41 for listening, 55 for reading, 56 for speaking and 52 for writing; and

• copy of the biodata page from the applicant’s Vietnamese passport.

1. On 16 March 2018, the Tribunal wrote to the applicant (via his nominated email address for correspondence) to invite him to attend a hearing on 4 April 2018 to discuss his case. The applicant was advised that if he did not attend, the Tribunal might dismiss his application for review, or make its decision on the available evidence. The hearing letter also set out the English proficiency requirements for a subclass 485 visa in detail.

2. The applicant did not respond to the hearing invitation, or provide any further material to the Tribunal.  Moreover, he did not appear before the Tribunal on 4 April 2018 to give evidence or present arguments. The Tribunal did not receive a request for an adjournment or any reason for his non-attendance.

3. The Tribunal is satisfied that its invitation letter to the applicant was sent to the correct email address nominated by the applicant, and that it was not returned as ‘undeliverable.’ The Tribunal further notes that 2 reminder SMS messages were sent to the applicant’s nominated mobile phone number on 26 March 2018 and 3 April 2018 about the hearing on 4 April 2018.

4. Under the circumstances, – where the applicant has been notified of the hearing date but has not attended or sought to have the hearing date rescheduled, and where the criterion in dispute is simple - the Tribunal has elected to proceed to a decision without taking further steps to offer another hearing to the applicant.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)).

2. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. 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).

3. Based on the evidence before it, the Tribunal makes the following findings:

• the applicants applied for a subclass 485 visa online on 29 August 2017. In the online visa application, the applicant indicated that he had undertaken an IELTS test on 19 August 2017;

• on 19 October 2017, the applicant was requested to provide evidence of his English test;

• on 19 October 2017, the applicant provided the Department with a copy of a booking for a PTE Academic English test that he was to undertake on 19 November 2017;

• the Department verified on 29 October 2017 that the applicant obtained an overall band score of 5.5 in the IELTS test he undertook on 19 August 2017; and

• the applicant undertook a PTE Academic English test on 14 November 2017 in which he obtained an overall score of 52, with scores of 41 for listening, 55 for reading, 56 for speaking and 52 for writing.

1. Item 1 of IMMI 15/062, the relevant written instrument, specifies that both an IELTS and a PTE Academic English test is acceptable for the purposes of cl.485.212(a)(i). Item 2 of IMMI 15/062 specifies that, for an IELTS, the required minimum overall score is 6 points, with a minimum of 5 for each of the 4 test components. The Tribunal is satisfied that the applicant’s IELTS test result of 19 August 2017 had an overall band score of 5.5 points, which is below the required score. Item 2 further specifies that for a PTE Academic test, the total overall score must be at least 50, with minimum scores of 36 for each of the listening, speaking, writing and reading components. The Tribunal is satisfied that the applicant’s PTE Academic test results exceed the required scores.

2. However, item 3 of IMMI 15/062 specifies that these tests (or any of the other specified English tests) must have been undertaken by the applicant within the 3 years before the day on which his visa application was made (that is, in the 3 year period immediately before 29 August 2017 – between 28 August 2014 and 28 August 2017). The Tribunal finds that only one of the applicant’s English tests were undertaken with the specified period, being his IELTS test undertaken on 19 August 2017. However, he did not obtain the specified overall band score for this test.  Although he obtained the required scores in his PTE Academic test, this test was undertaken on 14 November 2017, after he made his subclass 485 visa application.

3. The Tribunal is required to be satisfied that the applicant meets cl.485.212(a) in the way specified in IMMI 15/062. It has found that he did not, and cannot now do so due to the temporal limitation in item 3 of that instrument. The Tribunal has no discretion in the Act or Regulations to overlook or waive the combined requirements of cl.485.212(a) and IMMI 15/062.

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

5. 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

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

Alison Mercer
Member