Awan (Migration) [2020] AATA 4638 (4 June 2020)

Last Updated: 19 November 2020

Awan (Migration) [2020] AATA 4638 (4 June 2020)

DECISION RECORD

DIVISION: Migration & Refugee Division

APPLICANT: Mr Muhammad Qasim Awan

CASE NUMBER: 1829963

DIBP REFERENCE(S): BCC2018/3140630

MEMBER: Simone Burford

DATE: 4 June 2020

PLACE OF DECISION: Perth

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

Statement made on 04 June 2020 at 5:08pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test taken after application made and specified score achieved – previous visa about to expire – unclear evidence of advice received from department – advice does not change requirements – decision under review affirmed

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

CASES
Baig v MIBP [2018] FCCA 2986
Farook v MIBP [2014] FCA 1017
Kumar v MIBP [2014] FCA 1336
Sandhu v MIBP [2013] FCCA 2285

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.
2. The applicant applied for the visa on 20 August 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 visa on 27 September 2018 because the applicant did not have the required English language proficiency. The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.
4. The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments.
5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The applicant did not raise any concerns regarding the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).
8. 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. As such the applicant must meet cl.485.212(a).
9. The delegate’s decision records that when making the visa application the applicant answered “No” to the question:

Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?

The Delegate’s decision also notes that the declaration form goes on to state:

Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 Months that demonstrated you have at least competent English.

10. The delegate found that the applicant held a Pakistani passport which was not an eligible passport as specified by the Minister. Therefore, the delegate found that the applicant had not provided any evidence that he held a passport of a type specified by the Minister and did not satisfy 485.212(b).
11. Before the Tribunal, the applicant confirmed he did not hold a current passport from any of the specified countries. He testified that he held a Pakistani passport. Accordingly, the Tribunal finds that there is no evidence that the applicant has held a passport of a type specified, and cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).
12. The delegate’s decision records that when making the visa application the applicant provided evidence of having undertaken an International English Language Test System (IELTS) English language test on 4 September 2018. He also provided evidence of payment and booking details of the IELTS test for 22 August 2018. The delegate’s decision notes that both dates are after the application was lodged and on that basis the applicant did not satisfy 485.212(a)(ii).
13. The applicant has submitted evidence to the Tribunal, including a copy of his IELTS test results from 4 September 2018, his skills assessment results, certificates from the Perth College of Business and Technology, and TRA provisional Skills Assessment Application result from the Department of Education and Training dated 6 September 2018.
14. At the hearing the applicant set out the circumstances which led to him not meeting the English language requirement. He said he called the Department on 16 August 2018 and spoke to an immigration official. He said he asked whether he could submit the application without the test results and was told that if the system was letting him fill out the application he could submit it and provide supporting documents later. He said he didn’t have advice from anyone else but thought it was best to go to the Department. He said he asked if he should submit the application or seek more time. He said he was told to submit the application. He said his visa was expiring in 5 days and he was worried.
15. He said he would have applied for a bridging visa or extension if he had known he couldn’t take the test following the application being lodged. He then said he had booked several tests and ended up with the IETLS test he submitted. The Tribunal queried whether he had taken tests prior to submitting the application and he said he had taken two but had not achieved the required results. The Tribunal confirmed that his evidence was that although he took several tests within the required period prior to the application being lodged he had not achieved the required test results in those tests. He confirmed that was the case.
16. The Tribunal accepts that the applicant called the Department prior to lodging the application and received responses to inquiries he made. However, the Tribunal notes that it was not clear from the applicant’s evidence the exact nature of the information he received. Accordingly, it was not possible to determine whether he had misunderstood the information or been provided with incorrect information.
17. Regardless, as discussed with the applicant, it is the Tribunal’s view that information or advice provided by the Department or a third party cannot alter the requirements for the visa. The Tribunal explained to the applicant the requirements of cl.485.212. It explained that to meet the requirement 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.
18. The Tribunal explained to the applicant that the issue before it was whether he satisfies cl.485.212 which requires him to provide particular evidence as set out in the instrument. It was not open to the Tribunal to find he met the English language requirement on some other basis including on the basis of another test taken after the application was made.
19. Tribunal explained that regardless of any ambiguity or misreading of information from the Department, the law requires the applicant to have already taken an English language test by the time he made his visa application. The Tribunal’s task is to determine whether the applicant meets the criterion.^[1]
20. The Tribunal explained to the applicant that regardless of the reasons for the applicant not meeting the criterion, they must be met. This includes the requirement the applicant has undertaken a specified English language test within the 36 months before submitting his visa application. The Tribunal explained that it does not have any discretion to waive this requirement.^[2]
21. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS English language test – and achieved the specified score. 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 36 months 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.
22. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).
23. 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

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

Simone Burford
Member

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^[1] Analogous to decisions where the issue was misleading information on the application form, with respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285, Mohamed Farook v MIBP [2014] FCA 1017 at [55], and Kumar v MIBP [2014] FCA 1336 at [43].
^[2] In Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) the Court considered cl.485.212 and in particular the requirement in IMMI 15/062 that an English language test ‘must have been undertaken within the three years before the day on which the application was made’. The Court held that the language of IMMI15/062 provides no scope for consideration by the Tribunal of why an English test was not undertaken within the prescribed period.