Weerasekera (Migration)

[2018] AATA 2862

Weerasekera (Migration) [2018] AATA 2862 (27 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Shaveen Rashmi De Alwis Weerasekera
Mrs Shehana Fallon Weerasekera

CASE NUMBER:  1806328

DIBP REFERENCE(S):  BCC2018/465269

MEMBER:Nicola Findson

DATE:27 June 2018

PLACE OF DECISION:  Perth

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

Statement made on 27 June 2018 at 9:56am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language competency – IELTS test – Test not taken within specified period – Decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulation 1994, 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 29 January 2018. 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 visas on 20 February 2018 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 20 June 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.

8. The applicant is a citizen of Sri Lanka. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).

9. The applicant has provided to the Tribunal a copy of the delegate’s decision record.  It records that in his visa application the applicant declared that he had not undertaken an English language test within the last 36 months.  As there was no evidence before the delegate that the applicant had undertaken a specified test in the three-year period ending immediately prior to the day on which he lodged his visa application, the delegate found that he did not meet cl.485.212.

10. At the time of making his review application, the applicant provided to the Tribunal a copy of an International English Language Test System (IELTS)Test Report Form recording that the applicant undertook an IELTS test on 10 February 2018 and achieved 7 for listening, 7 for reading, 5.5 for writing, 8.5 for speaking and an overall band score of 7.  The Tribunal notes that this test was undertaken after the visa application was lodged.

11. At the hearing the Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirements the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made.

12. The applicant indicated to the Tribunal that he understood the requirements for the visa. He said he had previously undertaken an English language test, but realised at around the time he completed his visa application that he was unable to rely on that test as evidence of his English competency because it did not fall within the specified period.  So, he made arrangements to sit another English language test as soon as he could. 

13. The Tribunal explained that the law requires the applicant to have already taken an English language test by the time he made his visa application.  The Tribunal explained that it does not have any discretion to waive this requirement.

14. The Tribunal accepts that the applicant has undertaken a specified English language test - an IELTS test - and achieved the score specified.  However, it notes the test was undertaken after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made.  The Tribunal is therefore not satisfied the visa 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.

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 applicants Skilled (Provisional) (Class VC) visas.

    Nicola Findson
    Member