Uday (Migration)

[2019] AATA 4850

Uday (Migration) [2019] AATA 4850 (1 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ahuja Uday

CASE NUMBER:  1912882

DIBP REFERENCE(S):  BCC2019/1227008

MEMBER:Warren Stooke AM

DATE:1 November 2019

PLACE OF DECISION:  Melbourne

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

Statement made on 01 November 2019 at 2:26pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency and test – visa application submitted later on the day of test – specified score not achieved at time of application – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule, 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 11 March 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 11 May 2019 because the applicant did not provide evidence of completion of the required English language proficiency test, prior to application.

4. The applicant appeared before the Tribunal on 29 October 2019 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hindi and English languages.

5. 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 that he understood that the reason for the refusal to grant the visa was because he had to undertake an English exam before lodging his application.

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

7. The applicant was represented in relation to the review by his registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)).

10. 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).

11. The applicant provided evidence that he had completed an IELTS Test at 10.00am on 11 March 2019 and had subsequently lodged his application later that day. As such, the applicant accepted that he had not completed an IELTS Test prior to 11 March 2019, but had booked the test on the 7 or 8 March 2019.

12. The Tribunal asked the applicant if he accepted that the Tribunal had little discretion in relation to the matter and he responded – “Yes I do!”.

13. The applicant gave evidence that he was currently working as a Hospitality Manager and that he had completed a Master in Business  - Specialisation in Project Management, at Monash University

14. The Tribunal is satisfied, on the basis of the evidence, that the applicant did not undertake an English language test prior to and within three years of the date of application. As such, the Tribunal finds that the applicant has not satisfied cl.485.212(a) of Schedule 2 of the Regulations

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