Yam (Migration)

[2018] AATA 1201

Yam (Migration) [2018] AATA 1201 (10 April 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kin Ho Yam

CASE NUMBER:  1730848

DIBP REFERENCE(S):  BCC2017/4013159

MEMBER:Karen Synon

DATE:10 April 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 10 April 2018 at 4:05pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Whether the applicant has the required English language proficiency – Requirement for evidence of proficiency to accompany application – Test not undertaken until after visa application

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212(a)

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 October 2017. 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 17 November 2017 because the applicant did not have the required English language proficiency.  The applicant applied for review of the primary decision on 7 December 2017 and provided a copy of the department’s decision.

4. The applicant appeared before the Tribunal on 10 April 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

1. 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)).

2. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, the applicant stated at the hearing that she did not hold a passport specified, being a passport of the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland, and as such cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

3. The applicant provided a number of documents, not relevant to the issue on review, including identity documentation; educational qualifications; health insurance; a police check’ and his most recent Confirmation of Enrolment.  A submission was also provided in which the applicant explained his education history and voluntary work experience, and wrote that he conducted research online about the graduate visa and “it mentioned that we have to upload our English Language test result”.  He went on to say that at that stage he did not have any time to do his English language test and asked senior fellows for their advice who told him he could provide the English-language result during the time a bridging visa is granted.  Further, the school asked them to apply for the graduate visas as soon as possible because the student visas were going to expire in late November.  He applied for his graduate visa on 30 October 2017 and at the beginning still did not believe that he could proceed with the application without any proof of English language test however he finished the whole application and was granted a bridging visa even though he had declared ‘no’ to the question have you undertaken in English test within the last 36 months that demonstrate you have at least competent English?’.  The applicant contended that this made him develop the misconception that the requirements of the English language test result, as well as other documents, could be uploaded at a later stage.  He was shocked when he received the refusal as he had completed his IELTS test on 11 November 2017.  He thought he was following the right procedure but after reading the email realised he had made a serious mistake of misunderstanding the whole process of the visa application.  The submission also included a request for a fee reduction (which is not relevant to the Tribunal’s consideration) with the applicant concluding by apologising for the inconvenience caused due to his ignorance and that he has always provided sufficient documents for past visa applications.

4. During the hearing the Tribunal noted that it had considered his submission and noted that while he had now provided evidence of satisfactory English he sat the test after he applied for the visa.  The Tribunal asked the applicant if he would like to make any additional submissions.

5. The applicant emphasised that he was finishing his course and was too busy to sit English so was a bit rushed.  He said no one mentioned about the English test.  They (his friends) said he could take his time and he really didn’t pay much attention to it and regrets this.  Asked if he understood the Tribunal could not make a decision in his favour, he said yes.

6. The evidence before the Tribunal, as documented in the primary decision and conceded by the applicant in his evidence during the hearing, is that his visa application was not accompanied by evidence of him having undertaken an English language test specified by the Minister within the period specified, which is three years before the day on which the application is made, and achieved the score specified by the Minister. Consequently, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

7. 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

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

Karen Synon
Member