YADAV (Migration)

[2020] AATA 2299

YADAV (Migration) [2020] AATA 2299 (28 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr ROHIT YADAV

CASE NUMBER:  1925405

DIBP REFERENCE(S):  BCC2019/3764429

MEMBER:Roslyn Smidt

DATE:28 May 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 28 May 2020 at 12.09 pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – test not undertaken within specified period – no discretion – 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 30 July 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 9 September 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 28 May 2020 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. In his application for review the applicant indicated that he had not undertaken a specified language test and did not hold a specified passport.

8. On 22 May 2020 the Tribunal received a number of documents from the applicant including a statement in which he stated that he had prepared his visa application without assistance and had done so in a rush as his student visa was about to expire. As a result, he failed to undertake the required language test prior to lodging his application. He undertook a PTE test on 4 September 2019, but his visa application was refused before he was able to submit it to the Department. He provided a copy of his results from this test.

9. At the hearing I explained the relevant requirements to the applicant and observed that it appeared that he did not meet cl.485.212 as he did not hold an appropriate passport and had not undertaken a specified language test within the specified period prior to lodgement of his application. The applicant repeated the submissions made earlier and added that failure to obtain a 485 visa would have a significant impact on his career.

10. It is clear from the evidence set out above that the applicant did not undertake a specified language test within the period of three years prior to lodgement of his application. While the Tribunal sympathises with his current situation, it does not have discretion to take account of matters such the difficulty of organising an appropriate test at short notice or the impact that failure to obtain the visa might have on his future career.

11. The Tribunal is not satisfied that the application meets the requirement of cl.485.212. 

    CONCLUSION

12. 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

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

    Roslyn Smidt
    Member