1604359 (Migration) - [2016] AATA 4214

1604359 (Migration) [2016] AATA 4214 (3 August 2016)

DECISION RECORD

DIVISION:Migration & Refugee Division
APPLICANT:  Miss Kym-Lan Sarah Rocchia
CASE NUMBER:  1604359
DIBP REFERENCE(S):  BCC2016/147521
MEMBER:Lisa Lo Piccolo
DATE:3 August 2016
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 03 August 2016 at 4:32pm

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 applied for the visa on 11 January 2016. 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.
The delegate refused the visa on 11 March 2016 because the applicant did not have the required English language proficiency.
The applicant appeared before the Tribunal on 2 August 2016 by telephone to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s Australian citizen partner, Dale Aaron Moore.
For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

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)).
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).
In the original visa application form, lodged online on 11 January 2016, the applicant answered “no” to the question about whether she had undertaken an English language test within the last 36 months. The applicant also answered “no” to the question of “Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English). As the applicant did not provide the Department with any evidence at the time of application that she had in fact undertaken an English language test as specified by the Minister, the delegate found that the application did not meet the requirements of regulation 485.212(a) and the visa application was refused on this basis.
The applicant told the Tribunal that she had completed an IELTS assessment in the 36 months prior to the time of her application. She said that initially answered yes to the question about whether she had undertaken an English language test within the last 36 months. However, she said that the online form required her to insert the date of the test and a reference number and because she was unable to locate it at the time she was filling in the form, she did not want to include false information, so she answered “no”. The applicant further explained that she had departed Australia in August 2015 at the cessation of her student visa and she had only returned to Australia on 6 January 2016. She said that she had only a few days to lodge her application and at the same time was in the process of relocating house and moving in with her partner. She said that she located her test results in the following days and her and her partner were checking the online portal to determine when her application had been assigned to a case officer so that she would know where to send her additional documents. She said she was unable to upload further additional documents through the online portal. She also said that she assumed the Department would contact her and request further information by which time she would have located it or obtained another copy from IELTS.
The applicant also told the Tribunal she had completed a Cambridge English: Proficiency (CPE) on 24 January 2014. She said this exceeds the minimum English requirements of the Minister, but the online system did not allow her to upload it. She said the portal only allows you to upload documents in the categories provided.
On 30 March 2016, the applicant submitted to the Tribunal an IELTS test report form dated 25 May 2013 TRF 13AU001168ROCK100A. The applicant also submitted a Cambridge English: Proficiency (CPE) certificate, dated 24 January 2014. This was 79 days after her application was lodged. This was the first time the applicant submitted these documents. She did not submit any English test results to the Department at any time prior to the delegate making his decision to refuse her visa.
On the basis of the evidence before it, the Tribunal accepts that the applicant did undertake an English language test specified by the Minister, namely an IELTS test on 25 May 2013, which was undertaken within a 36 month period prior to the date of the application. However, as discussed at the hearing, the issue remains whether, the application was accompanied by evidence that the applicant had undertaken a language test specified in an instrument; given that the IELTS test result was only provided to the Tribunal by the applicant on 30 March 2016.
The applicant submitted that the dates regarding the time period of the English tests were different in the latest Act and on the application form, which caused her some confusion. She also submitted that she has passed the most advanced and rigorous version of the Cambridge English Language Assessments and not supplying her results contemporaneously with her application should not signal the refusal of her visa application, especially given the inflexibility of the online system which did not allow her to properly explain her circumstances. She pleaded with the Tribunal to find some sort of elasticity that did not require her results to be submitted at exactly the same time the application was made because she has acted in good faith and done all she can to comply with Australian migration law and not to mislead the Department.
The Tribunal has taken into account the oral and documentary evidence, and the applicant’s submissions, and had regard to the case law as follows when determining this matter.
In Chidemo v MIAC[1] the Court held that evidence, given to the Tribunal for the first time, of an arrangement made to sit an English test before the visa application date did not accompany the application. Similarly, in Nayeem v MIAC[2], after considering the High Court’s comments in Berenguel v Minister for Immigration and Citizenship[3], the Court held that when a clause requires an application be ‘accompanied by evidence’ of a particular state of affairs, the relevant criterion imposes a substantive requirement that can only be satisfied by evidence provided to the Minister at the time the application is lodged.
[1] [2010] FMCA 19.
[2] [2010] FMCA 618.
[3] (2010) HCA 8 at 26
However, in Anand v MIAC [2013] FCA 1050[4], the Court considered the meaning of ‘accompanied by’ and was prepared to accept that evidence accompanying an application could be supplied after the application is lodged but the court held that there must still be a temporal connection with the application, and evidence supplied around the time of application may be sufficient.
[4] At [28]
Most recently, in Nguyen v Minister for Immigration & Anor[5], the Court acknowledged that the phrase “when the application was made, it was accompanied by evidence” is used in a number of different places including cl.485.212. Burchardt J made the following comments in relation to these replicated words in r.485.223:
“It therefore follows, in line with the High Court’s reasoning in Berenguel, albeit in different circumstances, that the sort of flexibility referred to in the authorities and encapsulated most recently by Katzmann J [in Anand] must surely be available. In my opinion, her Honour’s remarks in Anand are applicable …”
[5] [2016] FCCA 1523 (8 July 2016) per Judge Burchardt
In the Tribunal’s view, these authorities suggest that even if it is possible to submit documents after the application was made, there must still be a temporal connection between the application and the documents that accompany it. The Tribunal notes that as with cl.485.223, cl.485.212 has a requirement that the evidence must accompany the application “when the visa application was made”. That, in the Tribunal’s view, supports the interpretation that the evidence must be submitted at, or “around the time of the application”.
Evidence of an English language test submitted to the Tribunal (and not the Department) 79 days after the application is made does not meet that temporal requirement, and means, that when the application was made, it was not accompanied by evidence that the applicant has undertaken a language test specified in an instrument.
The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a).
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.

MINISTERIAL INTERVENTION

The Tribunal has great sympathy for the applicant’s circumstances. It is immediately apparent that this outcome is not, on one view, an efficient or fair one. The applicant, in substance, at all times had the qualifications required for the category of visa that she sought and she will not now be able to make another application of this kind.
The Tribunal found the applicant to be credible. The Tribunal accepts her evidence that she was unable to upload further documents once the application was submitted. The Tribunal also accepts that she used her best endeavours to answer the questions accurately and to not provide misleading information to the Department. The applicant expressed concern that the application form referred to different English test result periods than the Act, and this also confused her. Whilst the Tribunal has no way of verifying the accuracy of this, the Tribunal notes that the applicant departed Australia in compliance with her student visa in August 2015 notwithstanding that she was in a relationship with an Australian citizen, and re-entered Australia after applying for a visitor visa with the sole intention of applying for a subclass 485 visa. And, although the Minister has not specified the Cambridge English: Proficiency (CPE) test in the Instrument, this qualification is Cambridge’s highest English qualification, and indicates that she has mastered English to an exceptional level and can communicate with the fluency and sophistication of a highly competent English speaker.
Having regard to the circumstances of the applicant as outlined above and having considered the Ministerial guidelines relating to the Minister's discretionary power under section 351 set out in PAM3 “Minister’s guidelines on ministerial powers (s351, s417 and s501J) the Tribunal considers this case should be referred to the Department to be brought to the Minister's attention.
The Tribunal considers that the circumstances of this case may raise the following matters:
·Circumstances that the legislation does not anticipate; and
·Circumstances where the application of relevant legislation leads to unfair or unreasonable results in a particular case.

DECISION

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

Lisa Lo Piccolo
Member