Umoren (Migration)

[2020] AATA 535

Umoren (Migration) [2020] AATA 535 (3 March 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Dr Etido Paul Umoren

CASE NUMBER:  1922232

DIBP REFERENCE(S):  BCC2019/3448779

MEMBER:Wan Shum

DATE:3 March 2020

PLACE OF DECISION:  Sydney

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

Statement made on 3 March 2020 at 3:42pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – test undertaken outside of prescribed period – after lodgement of visa application – no provision for waiver – 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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant holds a passport of Nigeria. He applied for the Subclass 485 visa on 10 July 2019. 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 22 July 2019 because the applicant did not have the required English language proficiency.

4. A hearing was held on 28 January 2020 where the applicant had an opportunity to give evidence and present arguments by teleconference.

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. On his visa application form, the applicant indicated that he did not meet the English language requirements when completing the form. The Tribunal has proceeded to consider and assess the evidence before it.

8. It notes that the applicant holds a passport of Nigeria. There is no evidence that the applicant held a passport of a type specified, and as such cl.485.212(b) is not met. The applicant must therefore meet cl.485.212(a).

9. On review, the applicant has provided a copy of an IELTS test undertaken on 7 September 2019. The wording of cl.485.212(b) and the applicable instrument makes clear that the specified English language test must have been undertaken within the three years before the day on which the visa application was made. The IELTS test was undertaken after the visa application was made.

10. In the applicant’s statement, he advised that he was unable to book a test prior to the application being made due to a number of factors which included prolonged studies, finances and emotional distress. The applicant described the stress he was under during his students when the scholarship funding he had been granted by Niger Delate Development Commission from the Federal Republic of Nigeria suddenly stopped. He also referred to the timing of the submission of his final thesis and his conferral date, and his student visa cease date.

11. The applicant confirmed at the hearing that he had not undertaken a test within the 3 years prior to lodging his visa application.

12. The applicant had earlier referred to the Department making a decision within a short timeframe of his visa application being lodged and that the decision was made without having received any enquiries from the Department. However, on the evidence before the Department, where the applicant had responded “no” to the question whether he held a specified passport and had not undertaken an English language test, it cannot be said that the finding was not correctly made.

13. The applicant has achieved the minimum specified scores in the IELTS test undertaken on 7 September 2019, but this was after the visa application was made. Accordingly the results of this test cannot meet the requirement specified in IMMI 15/062 paragraph 4.

14. On the basis of the evidence before it, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

15. The Tribunal acknowledges that the applicant faced a number of difficulties with the completion of his studies. The applicant had requested the Tribunal speak to a number of witnesses during the hearing who would attest to his situation and difficulties, but it advised that it would not do so as the issue was whether he had undertaken the English test in the relevant period prior to the visa application. It is clear that he had not done the test within the 3 years prior to making his application as required. While it has sympathy for the applicant, it cannot remit the matter to the Department when he does not meet this criterion. The Tribunal has no power to waive the requirement nor does it have any discretion in this matter. It is unable to find that he meets the requirements of cl.485.212 on the evidence before it.

16. As the applicant does not meet the requirements of cl.485.212 of Schedule 2 to the Regulations, he therefore does not satisfy the criteria for the grant of a Subclass 485 visa. Accordingly, 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.

    Wan Shum
    Member