Riyadh (Migration) [2018] AATA 2981 (4 July 2018)

Last Updated: 21 August 2018

Riyadh (Migration) [2018] AATA 2981 (4 July 2018)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Mohammed Yasser Alam Riyadh

CASE NUMBER: 1711099

DIBP REFERENCE(S): BCC2017/1107300

MEMBER: Alison Mercer

DATE: 4 July 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 04 July 2018 at 6:18pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency – Did not hold a specified passport – Did not undertake specified English test within specified period – Post-application IELTS scores shows high level of proficiency – Claims of erroneous advice from department – Tribunal has no discretion – Possible recourse to ministerial intervention – Compensation for Detriment caused by Defective Administration (CDDA) Scheme – Decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 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 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 21 March 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 18 May 2017 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and had not undertaken a specified English test with the specified period in which he obtained the specified score.
4. The Tribunal received a review application from the applicant on 24 May 2017, which was accompanied by a copy of the delegate’s decision. Subsequently, the applicant provided to the Tribunal an International English Language Testing System (IELTS) test result form indicating that he obtained an overall band score of 7.5 (with individual scores of 7.5 for listening, 7.0 for reading, 7.0 for writing and 7.0 for speaking) in a test he undertook on 3 June 2017. In a statement dated 13 July 2017, the applicant said that he came to Australia as an international student to do his Master of Laws degree in Global Business Law at La Trobe University in 2013 and was exempted from having to do an English test as he had done his Bachelor of Laws degree in England. The applicant further stated that after the successful completion of his Masters degree, he joined a culinary school, for which he was also exempted from having to undertake an English test. Furthermore, prior to lodging his subclass 485 visa, he called the Department to discuss whether he was required to do an English test, and was assured over the phone that he would be exempt from having to do so. The applicant said that he therefore lodged the subclass 485 visa application without having sat an English test, but confident he met all of the requirements. He assumed that if the Department did require him to do an English test, he would be informed of this but instead he simply received the refusal decision. The applicant said that now all of his hard work, money and the time he had invested would be a waste of time due to a simple misunderstanding. He noted that he had now undertaken a specified test and exceeded the required scores and he stated that he hoped that this could be taken into account by the Tribunal.
5. The applicant appeared before the Tribunal on 20 April 2018 to give evidence and present arguments. The applicant confirmed the contents of his written statement and further told the Tribunal that he had undertaken all of his secondary and tertiary education in English in England, hence he was not required to undertake formal English testing to be accepted into his post graduate studies in Australia, nor to obtain an Australian student visa. Therefore, he did not realise it was compulsory for the subclass 485 visa that he had to have done a specified English test before he applied for that visa. The applicant emphasised that he did try to clarify this issue before making his subclass 485 visa application, and spent 1.5 hours on hold to the Department before he was able to speak to an officer and then a supervisor. The advice he received made him confident that he could go ahead without taking an English test first. The applicant noted that the online subclass 485 visa application process allowed him to continue and complete the application even though he answered ‘no’ to the question of whether he had undertaken a specified English test within the last 36 months. The Tribunal discussed with the applicant that the need to do a specified English test within the specified period before making the subclass 485 visa was a mandatory requirement unless an applicant held a specified passport. The Tribunal noted that a Bangladeshi passport (as held by the applicant) was not a specified passport for these purposes.
6. The applicant told the Tribunal that he had now been in Australia for 5 years and spent a considerable amount of money on his studies here. He wished to undertake the Leo Cussen practical training course for law graduates in Melbourne but was unable to do so unless granted the subclass 485 visa. In response to the Tribunal’s query, the applicant said that he had lodged an Expression of Interest (EOI) for a subclass 190 visa and also had a pending subclass 189 visa application with the Department, based on his commercial cooking qualification and his assessment of his points under the skilled points test.
7. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).
9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl.485.212(b) is not met. Accordingly, the applicant must meet cl.485.212(a).
10. Based on the evidence provided to the Tribunal and the Department, the Tribunal finds that the applicant made his subclass 485 visa application on 21 March 2017 and further finds that he has undertaken the following English test:
    • IELTS test on 3 June 2017, in which he obtained an overall band score of 7.5, with scores of 7.5 for listening, 8.0 for reading, 7.0 for writing and 7.0 for speaking.
11. IMMI 15/062 provides that an IELTS test is a specified test for the purposes of cl.485.212(a) and that the scores required to be obtained by an applicant are an overall band score of not less than 6, with scores of 5 or above for each of the 4 test components of listening, reading, speaking and writing (items 2 and 3 of IMMI 15/062).
12. It is not disputed that the applicant achieved these scores in the IELTS test he undertook on 3 June 2017.
13. However, item 4 of IMMI 15/062 stipulates that only a specified English test undertaken within the 3 years before the day on which the subclass 485 visa application was made can satisfy cl.485.212(a)(ii). In this case, that period is 20 March 2014 to 20 March 2017, as the visa application was made on 21 March 2017. The Tribunal finds that the English test undertaken by the applicant was not undertaken in the specified period.
14. Accordingly, the Tribunal must find that the applicant does not meet cl.485.212(a)(ii) and thus does not meet cl.485.212 as a whole.
15. The Tribunal has no power to waive the specific requirements in cl.485.212 and IMMI 15/062 which prescribe the only ways in which that clause can be met. This means the Tribunal cannot substitute its own opinion as to the applicant’s English proficiency, even though it accepts his post-application IELTS scores clearly show he has a high level of proficiency, as does the fact that he has undertaken secondary, undergraduate and post graduate studies in English. Nor does the Tribunal have the power to grant the applicant another visa, or otherwise enable him to make any further visa application onshore.
16. On the basis of the above, the Tribunal finds that 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.
17. The Tribunal notes that in the event of an unsuccessful review application, s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: http://www.border.gov.au/Trav/Refu/Mini/ministerial-tribunal
18. The Tribunal notes that it remains open to the applicant to make such a request for Ministerial intervention directly to the Minister themselves if he believes that his case meets the Ministerial intervention guidelines or otherwise raises strong compassionate or compelling circumstances. In the alternative, the applicant may wish to consider making an application under the Compensation for Detriment caused by Defective Administration (CDDA) Scheme, which may provide compensation in cases where people can establish that they have experienced detriment as a result of a non-corporate Commonwealth entity: https://www.finance.gov.au/resource-management/discretionary-financial-assistance/cdda-scheme/information-for-applicants-cdda/.

DECISION

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

Alison Mercer
Member