Urbonaite (Migration)

[2019] AATA 6399

Urbonaite (Migration) [2019] AATA 6399 (5 December 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Gabriele Urbonaite

CASE NUMBER:  1906547

DIBP REFERENCE(S):  BCC2018/6145071

MEMBER:Denise Connolly

DATE:5 December 2019

PLACE OF DECISION:  Sydney

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

Statement made on 05 December 2019 at 2:08pm

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) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 14 January 2019. 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 primary criteria must be satisfied by the applicant.

3. The delegate refused the visa on 13 March 2019 because the applicant did not provide evidence that she had undertaken a specified test in the specified period.  

4. The applicant appeared before the Tribunal on 3 December 2019 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.

8. 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. As such the applicant must meet cl.485.212(a).

9. The relevant instrument specifies among other things that the specified English language test must have been undertaken within the 3 years before the day on which the application was made.

10. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that when making the visa application the applicant answered ‘No’ to the question ‘Have you undertaken an English test within the last 36 months?’.

11. The delegate found that as the applicant did not provide evidence that she undertook a specified test in the specified period she does not meet cl.485.212(a).

12. The applicant has provided to the Tribunal her IELTS test report form for the test undertaken on 23 March 2019 (after the visa application was made) in which she scored 9 for listening, 7.5 for reading, 7.5 for writing, 9.0 for speaking and an overall band score of 8.5. She also provided evidence that she completed a Certificate for Upper Secondary Education and Training in Norway, including English subjects, and a Bachelor of Information Technology at the University of Newcastle.

13. The applicant has also provided evidence that she has been employed since March 2019 as a Support Analyst by Pulse Mining Systems.

14. At the hearing the Tribunal explained to the applicant that it cannot consider her educational qualifications as evidence she meets the English language requirements. It also explained that, while she has now achieved the specified scores in a specified test, it was not undertaken in the specified period, that is, 3 years before the day on which the application was made. The applicant explained that when she applied at the university she was not required to undertake an English test because of her results in the Certificate course completed in Norway. She confirmed she is employed in Australia by Pulse Mining Systems as a Support Analyst.

15. The applicant had indicated she wished for the Tribunal to take evidence from her boyfriend and work colleague who would testify that she has no issues in communicating in English. This was not necessary as her IELTS test results clearly demonstrate her English language proficiency exceeds the minimum scores specified in the relevant instrument. The issue is that she did not undertake her English language test in the specified period. The Tribunal appreciates why she did not think this was necessary however it has no discretion to waive the requirements of cl.485.212 and the relevant instrument.

16. The Tribunal accepts that the applicant achieved the specified scores in the IELTS test undertaken on 23 March 2019. However as this test was undertaken after the day the visa application was made, it was not undertaken within the 3 years before the day on which the application was made as specified in the relevant instrument, and therefore does not meet the requirements of cl.485.212(a).

17. Accordingly the Tribunal is not satisfied the applicant has demonstrated that her visa application was accompanied by evidence that she meets the requirements of cl.485.212(a) or cl.485.212(b).

18. 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

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

    Denise Connolly
    Member