1603062 (Migration)

[2016] AATA 4769

1603062 (Migration) [2016] AATA 4769 (6 December 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr KULDEEP KUMAR
Master NEHA SHARMA
Master ALIYAH SHARMA

CASE NUMBER:  1603062

DIBP REFERENCE(S):  BCC2015/3775975

MEMBER:Miriam Holmes

DATE:6 December 2016

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 06 December 2016 at 7:53am

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – Successful completion of PTE test – No PTE test evidence accompanying application

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, cl 485.212

CASES

Anand v MIAC [2013] FCA 1050

Nguyen v Minister for Immigration & Anor [2016] FCCA 1523

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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 9 December 2015. 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 visas on 22 February 2016 because the first named applicant (the applicant) did not have the required English language proficiency as required by cl.485.212.

4. Mr Kumar, appeared on behalf of all the applicants, before the Tribunal on 7 November 2016 to give evidence and present arguments.  Mr Kumar is hereafter referred to as “the applicant”.

5. The applicants were represented in relation to the review by their registered migration agent, Mr Bajwa.

6. 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 16/060.

3. In the present case, the applicant gave evidence that he is the holder of an Indian passport and has never held any other passport. 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.

4. The Tribunal considered whether the applicant met the requirements in cl.485.212(a).

IELTS test

1. In the delegate’s decision record the delegate notes that in the visa application the applicant responded “yes” to the Question have you undertaken an English test within the last 36 months? The delegate also notes that in support of the applicant’s English language ability the applicant provided details of an IELTS test undertaken on 7 June 2014.  The Tribunal notes that the visa application states that an IELTS test was undertaken on 7 June 2014 with an IELTS reference number and that it was undertaken in Australia.

2. A department officer undertook verification of the IELTS test results. The IELTS results for the test undertaken on 7 June 2014 were as follows: overall band score 5.5, listening band score 5, reading band score 5, writing band score 5.5 and speaking band score 5.5.  At the hearing, under the procedure in s359AA, the Tribunal invited the applicant to comment on the scores for the IELTS test result. The Tribunal advised the applicant he may seek an adjournment to consider the information. The representative responded immediately. In response the representative made submissions regarding the process of lodging the visa application and the completion of the PTE test.  This is set out further below. The applicant and the representative did not dispute the IELTS test results and confirmed the test date was correct.

3. Therefore, based on the IELTS test results, as the applicant had an overall band score less than 6, the Tribunal is not satisfied that the applicant meets the English language proficiency requirements.

PTE test

1. On 14 October 2016 the Tribunal received a submission and accompanying PTE test results for a PTE test undertaken by the applicant on 14 September 2015. In the written submission the representative referred to the PTE test result and notes that it was valid before the applicant lodged his sc485 visa application. He further submits “unfortunately due to some technical error, the system didn’t accept the attachment online and the application was refused in absence of it.”

2. At the hearing, the applicant gave the following evidence to the Tribunal regarding the PTE test.

3. The visa application was lodged on 9 December 2015 for a sc485 visa. At the time of the online visa application, the agent was authorised to make the application and the applicant provided information to the agent to make the visa application. The applicant did not review the visa application before it was made. He gave to the agent the PTE test result and IELTS test result. Previously he applied for a student visa and he needed an IELTS test with a 5.5 band score. He had undertaken an IELTS test and a PTE test.

4. In response to the information regarding the IELTS tests raised with the applicant under the procedure in s359AA , the representative stated that they initially filled the online visa application with the IELTS test information. He stated that the applicant provided the representative with a file and the applicant gave him the IELTS test result. They completed the visa application with the IELTS test result as they did not have a PTE result. The file did not go further. The applicant did the PTE exam.  The representative put the IELTS details in initially. But before the agent lodged the visa application the agent changed the language test details to the PTE details, but the online system did not pick up the PTE results but used the previous details. The representative said the new details were entered into the system and he does not know why they are not included in the visa application.   The representative said the applicant gave him the PTE exam results one week before. The representative submitted that the applicant meets the criteria because at the time the application was lodged the applicant had completed a valid PTE test.

5. The applicant agreed with what his agent told the Tribunal and he stated that he did the PTE test on 14 September 2015. They made the visa application on 9 December 2015 and he provided the PTE result to his agent. He realised when he got the refusal that the Department referred to his IELTS test. When the Tribunal asked the applicant if he had ever provided the PTE test result to the Department – he replied that he gave the PTE test result to his agent. The applicant did not know how to submit it to the Department.

6. The Tribunal asked the agent if he gave the PTE test result to the Department and the representative said he uploaded the document to the Department system, but the Department did not ask for any other documents. The agent said he has given the PTE document to the Department by uploading it to the Department system. When asked, the representative did not say when he uploaded the document. The Tribunal asked if he had proof that he uploaded the PTE test result. The agent said he would try and find out to see if the Department’s system is still open – but it closes after 28 days. If it is still open he can provide a snapshot. The Tribunal noted that it had no documentary evidence that it was uploaded to the Department system. The Tribunal received the PTE test result on 14 October 2016, but the Tribunal noted that it did not have evidence that the Department received the PTE test result. In response the representative submitted that the applicant met the PTE test at the time of application and he gave the PTE test result to the Tribunal. The representative referred to mistakes being made and a human error made, at the time of the visa application, when the information was changed.  The agent said on occasion they lodge documents online, but the Department asks for the documents again. The Tribunal noted the agent may wish to contact the Department to see if there is any record that the agent uploaded the PTE test result.  

7. The representative submitted that the applicant met the visa requirements. The Tribunal highlighted there was no information to show that the visa application was accompanied by evidence that the applicant met the English proficiency test.  The representative again submitted the applicant met the requirements and there are other cases where the visa application has been approved based on the English test results.  The representative submitted that the Department did not ask for the English language test. The representative submitted if there was a mistake – that is why they were at the Tribunal. 

8. The applicant submitted that it was not his fault if the agent made a mistake, the applicant stated that he did not make a mistake and hired an agent to assist him to make the visa application. He stated that before he lodged the visa application he did the PTE test – two or three months earlier. The applicant stated that it was not his fault.

9. The Tribunal deferred making a decision until after 21 November 2016 for the applicant and his agent to provide further information to show that the PTE test result evidence accompanied the application. The Tribunal received no further submissions or evidence from the agent or the applicant.

10. After the hearing, the Tribunal verified that the PTE tests results were correct as set out in the PTE report dated 14 September 2015 that was provided by the applicant to the Tribunal.

11. The Tribunal finds that the applicant did successfully complete the PTE test on 14 September 2015 and achieved an overall score of 50 and scores of 45 for listening, 52 for reading, 62 for speaking and 45 for writing. Therefore the Tribunal is satisfied that the applicant has undertaken a language test specified by the Minister and has achieved within the period specified by the Minister, the score specified in accordance with the requirements specified in the relevant instrument.

12. As discussed at the hearing, the issue is whether the visa application was accompanied by evidence that the applicant met the English language proficiency requirement. According to the delegate’s decision record and confirmed by the applicant at hearing, the visa application was lodged on 9 December 2015. The visa application uploaded to the Department system only included details of an IELTS test. As discussed during the hearing, there is no documentary information from the Department that the Department received the PTE test results.   The Tribunal received the PTE test result on 14 October 2016.

13. In Anand v MIAC [2013] FCA 1050 the Court considered the meaning of ‘accompanied by’ in the requirement that the application is accompanied by evidence that the applicant has applied for an Australian Federal Police Check. The Federal Court was prepared to accept that evidence accompanying an application could be supplied after the application is lodged.[1] It held that there must still be a temporal connection with the visa application, and evidence supplied around the time of application may be sufficient. The Court held:

    It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why the relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Certainly that appears to be the object of the provision.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question. 

    …

    I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Still, there must be some temporal connection with the application.  Evidence supplied around the time of the application may be sufficient.  I doubt, for example, if the accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application.  It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within the week and he did so, it might be said that the evidence accompanied the application.  But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged and two days after the decision was made.  Language cannot be stretched so far that it snaps (cf.  Wielgus v Removal Review Authority [1993] 1 NZLR 73 at 79).

    [1] [2013] FCA 1050 (Katzmann J, 16 October 2013) at [28].

14. The Tribunal also had regard to another more recent case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time that the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great. The Tribunal further notes that in that case, Burchardt J was considering cl.485.223, not cl.485.212. However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence that the applicant had applied for an assessment of the applicant’s skills from the relevant assessing authority, which is essentially the same wording as that used in cl.485.212.

15. On the evidence available, the Tribunal is not satisfied that the visa application was accompanied by evidence that the applicant had undertaken the specified language test and achieved the specified score within the specified period, as required by the relevant instrument.

16. The Tribunal considered the representative’s submission that he changed the online visa application form prior to lodgement by including the PTE test results and that he tried to upload the language proficiency PTE test results to the Department’s electronic systems. However, there is no documentary evidence to corroborate this account.   Further, it appears there is no evidence of the agent seeking to mail the PTE results to the Department or contacting the Department at any stage (including after the visa refusal) about the attempts by the agent to upload the PTE results to the Department systems or the change to the visa application form prior to lodgement. The representative referred to a mistake and “human error” when making submissions to the Tribunal. Further, the representative kept submitting that the applicant met the criteria based on the PTE results and did not specify when it was that he attempted to upload the PTE results to the Department’s electronic systems. No further information was provided after the hearing. The Tribunal is not satisfied based on the agent’s evidence alone that the PTE results were provided to the Department by uploading to the Department electronic systems.  The Tribunal considered that the first time the PTE results have been provided – was when they were given to the Tribunal on 14 October 2016. In such circumstances the Tribunal is not satisfied that the visa application was accompanied by evidence that the applicant met the English language proficiency requirement.

17. Therefore, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).

18. 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.

19. In relation to the secondary applicants, as the primary visa applicant does not meet the primary criteria the Tribunal cannot be satisfied that the secondary applicants meet the secondary requirements in cl.485.311. Therefore the decision in respect of the secondary applicants must also be affirmed.

DECISION

1. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Miriam Holmes
Senior Member