1504708 (Migration)
[2015] AATA 3612
•9 November 2015
1504708 (Migration) [2015] AATA 3612 (9 November 2015)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Jaspal Singh Gill
CASE NUMBER: 1504708
DIBP REFERENCE(S): BCC2011/500112
MEMBER:John Billings
DATE:9 November 2015
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 09 November 2015 at 2:37pm
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
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).
The applicant, Mr Gill, applied for the visa on 22 October 2011. At the time the visa application was lodged, Skilled (Provisional) (Class VC) contained two subclasses: 485 (Skilled - Graduate) and 487 (Skilled - Regional Sponsored). Having regard to the visa application, the relevant subclass in this case is Subclass 485, the criteria for which 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.
The delegate refused the visa because Mr Gill did not satisfy the Australian Study Requirement in the relevant period and because he did not have the required English language proficiency. The primary decision is dated 7 September 2012. The Department re-notified Mr Gill of the decision on 25 March 2015. Mr Gill applied for review on 8 April 2015.
Mr Gill is located in South Australia. He appeared before the Tribunal by telephone on 27 October 2015 to give evidence and present arguments.
Mr Gill was represented in relation to the review by his registered migration agent. The representative participated in the hearing with Mr Gill by telephone.
Mr Gill is a 29 year old national of India. He first arrived in Australia on 14 March 2008 holding an Indian passport and a Class TU Student visa that ceased on 30 October 2011. He has departed and re-entered Australia since he first arrived.
The visa application states in particular that Mr Gill has studied in Australia; that his nominated occupation is Cook and that he had applied for an assessment of his skills for that occupation; and that he undertook an IELTS test prior to making the visa application. In contrast, Mr Gill told the Tribunal that he has not studied in Australia; that he does not have the nominated occupation of Cook and that he has not applied for any skills assessment; and that the only IELTS test he has ever undertaken in Australia was undertaken this year.
Mr Gill said that he came to Australia in 2008 with his wife. She was the primary visa holder. They were divorced in 2011. They have a daughter who is in his ex-wife’s custody. She has remarried. Mr Gill said that he is his unsure about his rights in relation to his daughter.
Mr Gill told the Tribunal that he had never seen the application for the Class VC visa. He essentially conceded that he did not meet the requirements for a Subclass 485 visa. Regarding the circumstances in which the visa application was made, Mr Gill said that he consulted an agent in Adelaide – not his current representative – who told him that if he paid a fee the agent would obtain “work rights” for him. Mr Gill paid the fee. He later lodged some papers with the Department.
The visa application was made online. On its face the application was made without anyone’s assistance. The application included Mr Gill’s former residential address in Victoria but there was also an email address provided that Mr Gill told the Tribunal was not his email address.
Mr Gill said that the agent did not discuss with him the detail of what visa he would apply for and Mr Gill did not ask the agent about that. The agent told Mr Gill in effect that he would apply for a two year “work visa”. Sometime later on Mr Gill went to the agent’s office but the agent was not there.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
Mr Gill’s representative submitted that Mr Gill was misled by his former migration agent. In the circumstances the Tribunal confirmed that it was not submitted on Mr Gill’s behalf that the visa application was not Mr Gill’s visa application. That was confirmed.
The Tribunal did not receive any evidence from the former agent. On Mr Gill’s evidence the essential circumstances were these. Mr Gill asked the former agent for assistance in obtaining a visa. The agent did not discuss with him detail about the kind of visa that he would apply for and Mr Gill did not ask the agent about that. The agent told him in effect that he would apply for a two year “work visa”. The Tribunal considers that no question of the agent’s authority to complete the visa application form arises from this evidence, and no question of the validity of Mr Gill’s application by reason of want of authority on the part of the agent arises: see for instance Kaur v MIBP and Prodduturi v MIBP [2013] FCCA 1805; and Sran v MIBP [2014] FCCA. There is now also Singh v MIBP [2015] FCAFC 151, in which judgment was given on the same day as Mr Gill’s hearing before the Tribunal. Mr Gill’s circumstances may be contrasted with the circumstances claimed by the applicant in that case.
Mr Gill has not studied in Australia. Therefore he cannot satisfy cl.485.213, the Australian Study Requirement.
Cl.485.215 contains the requirement that an applicant have competent English. Regulation 1.15C provides that a person has ‘competent English’ if the person:
(a)satisfies the Minister that:
(i)the person undertook a language test, specified by the Minister in writing for this subparagraph; and
(ii)the test was conducted in the 2 years immediately before the day on which the application was made; and
(iii)the person achieved a score specified in the instrument; or
(b)satisfies the Minister that the person holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.
The relevant instrument is IMMI 11/036. In the present case, there is no evidence that Mr Gill has held a passport of a type specified and as such r.1.15C(b) is not met. For r.1.15C(a)(i) and (iii), the Minister has specified two language tests and scores: the International English Language Test System (IELTS) test and a test score of at least 6 for each of the 4 test components; and the Occupational English Test (OET), and a test score of at least ‘B’ for each of the 4 test components. There is no evidence that Mr Gill undertook a relevant language test conducted in the two years immediately before the day on which the visa application was made and that he achieved the specified score in that test. Therefore the Tribunal finds that Mr Gill does not have competent English as defined in r.1.15C(a).
On the basis of the above, Mr Gill does not meet the requirements of cl.485.213 and cl.485.215 of Schedule 2 to the Regulations.
Further to that, Mr Gill does not meet the requirements of other clauses - cll.485.214 and 485.221 – in relation to a skills assessment.
Mr Gill 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.
Mr Gill’s representative informed the Tribunal that Mr Gill is presently exploring the possibility of applying for a Subclass 457 visa. In those circumstances the representative asked the Tribunal to defer making its decision in the present case to enable Mr Gill to do that.
In considering that request the Tribunal has had regard in particular to the President’s Direction Conducting Migration and Refugee Reviews and to relevant legislative objectives, including the objective of timeliness: see the discussion in MIAC v Li [2013] HCA 18 in the context of s.353 of the Act (and see now s.2A Administrative Appeals Tribunal Act 1975).
For the following reasons the Tribunal has decided that it should finalise the review without further delay. The representative could not say how soon Mr Gill would be in a position to make a further visa application. But the evidence indicates that, even if Mr Gill was at all misled by his former migration agent, he displayed an indifference to what the agent was doing on his behalf. The visa application was made just over four years ago. Mr Gill understood that there was an application that could result in him being given the right to work in Australia for two years. Between October 2011 and this year Mr Gill has had a considerable time in which he could have approached the Department directly, or engaged a new migration agent, in order to ensure that his continuing presence in Australia had a lawful basis that reflected his actual circumstances.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
John Billings
Senior Member
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