Tshering (Migration)

[2018] AATA 5381

Tshering (Migration) [2018] AATA 5381 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Pema Tshering
Mrs Sangay Wangmo
Ms Keetsho Tenzin Tshering

CASE NUMBER:  1713178

DIBP REFERENCE(S):  BCC2017/965616

MEMBER:Denise Connolly

DATE:16 November 2018

PLACE OF DECISION:  Sydney

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

Statement made on 16 November 2018 at 9:08am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language requirement – not holder of specified passport – evidence of English language requirement provided after application – tribunal delayed decision until daughter finished year 12 – decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65,

Migration Regulations 1994, Schedule 2, cls 485.212, 485.311

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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 11 March 2017. Visa Class VC contains Subclass 485. 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 on 19 June 2017 because the first named applicant (the applicant) did not provide evidence with the visa application that he met the English language requirements.

4. The applicants appeared before the Tribunal on 30 April 2018 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 IMMI 15/062. In the present case, the applicant is a citizen of Bhutan. There is no evidence to suggest that the applicant has held a passport of a type specified, and as such cl.485.212(b) is not met. Therefore the applicant must meet cl.485.212(a).

8. The relevant instrument specifies that one of the specified English language tests must have been undertaken within the three years before the day on which the visa application was made.

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It states that on 11 March 2017, when lodging an online visa application, the applicant declared ‘yes’ to the declaration ‘do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland… Or have you undertaken in English test within the last 36 months it demonstrates you have met the English language requirement?’. The applicant did not however provide additional information to demonstrate that he had undertaken an English language test within the 3 years before the day on which the application was made. On 8 May 2017 the Department emailed the applicant requesting that he provide evidence that he had undertaken in English language test in the specified period. By 19 June 2017 the applicant had not responded to the request. The delegate proceeded to make his decision and decided he was not satisfied the applicant had provided information to demonstrate he has achieved the required scores in a specified English language test in the specified period.

10. When making the review application the applicant provided evidence that he had paid to sit an IELTS test on 8 July 2017. The Tribunal notes this is after the date of the visa application. He also provided evidence relevant to other requirements for the grant of the visa.

11. At the hearing the Tribunal explained the requirements of cl.485.212 and the specifications in IMMI 15/062. It explained that it appeared the application was not accompanied by evidence that the applicant had undertaken a specified test in the period specified.

12. The applicant stated that he finished his Master of Business Administration in December 2016. His student visa expired in March 2017. He did not think he needed to sit another English language test because he met the English language requirement to study in 2012. The applicant confirmed he did not undertake a specified English language test in the three years before the visa application was made.  He told the Tribunal that the Department wrote to him in May 2017 requesting evidence that he met the English language and health requirements. He explained that he had the flu and then his wife had the flu so they wanted to postpone having their chest x-rays.

13. The Tribunal explained that the visa application needed to be accompanied by evidence that the applicant had achieved the specified scores in the period specified, that is, the test must have been undertaken within the three years before the day on which the application was made. It explained that, on the evidence before it, it would have to affirm the decision. The applicant raised with the Tribunal his concern for his daughter, the third named applicant, who is in Year 12 and would not finish her exams until the end of the calendar year. The Tribunal agreed to postpone making its decision so that the applicant could make submissions as to why it should consider recommending the Minister intervene.

14. On the evidence before it, the Tribunal is not satisfied there was evidence accompanying the visa application that the applicant had undertaken a specified English language test in the specified period and achieved the specified scores. The Tribunal is therefore not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

15. There is no evidence to suggest the secondary applicants meet the primary criteria for the grant of a Subclass 485 visa.

16. As the applicant does not meet the requirements of cl.485.212 he cannot be granted the Subclass 485 visa. Accordingly the secondary applicants do not meet the requirement in cl.485.311 that they are a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria.

17. After the hearing the applicant provided a written submission in which he explains that his family’s purpose for coming to Australia was education; not to stay permanently. His daughter is currently in Year 12 at Balcatta Senior High School and the next few months are a crucial time for her to complete her secondary education at the same school, in the same system. She is working hard to study medicine in Australia. Discontinuing her study mid year would be detrimental to her future. He requested that the Tribunal recommend Ministerial intervention in the family’s case to allow his daughter to complete Year 12.

18. The applicant provided a letter from the Associate Principal of Balcatta Senior High School confirming the third named applicant is enrolled in a science based ATAR pathway (university bound course) and is studying chemistry, human biology, psychology, mathematics, English and an additional language. She is achieving well and is a dedicated, diligent student at all times.

19. The Tribunal has postponed making its decision to allow the applicant’s daughter to complete Year 12. In this case it has decided not to refer the matter to the Minister.

20. 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 decisions under review will be affirmed.

    DECISION

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

    Denise Connolly
    Member