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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 4214
Decision Date: 3 August 2016

CaseChat Overview and Summary

The applicant, Mr. K. S. S., sought judicial review of a decision made by the Minister for Immigration, Citizenship and Multicultural Affairs, which affirmed the refusal of his visa application. The dispute centred on whether the Minister's delegate had properly considered the applicant's submissions regarding his claims of persecution in his home country, specifically in relation to his alleged membership of a particular religious group and the potential for him to face harm if returned. The matter came before the Federal Circuit and Family Court of Australia.

The primary legal issue before the Court was whether the delegate's decision was affected by jurisdictional error. This involved determining if the delegate had failed to take into account relevant considerations, specifically the applicant's detailed submissions concerning his fear of persecution, or if the delegate had taken into account irrelevant considerations. The Court was required to assess whether the delegate's assessment of the evidence, particularly concerning the applicant's claims of religious persecution and the risk of harm, was reasonable and adequately reasoned.

Her Honour Judge Lo Piccolo found that the delegate had failed to adequately consider the applicant's detailed submissions regarding his fear of persecution. The delegate's decision, in dismissing these submissions, was found to be cursory and did not engage with the substance of the evidence provided by the applicant. The Court applied the principles of administrative law, emphasizing the obligation of a decision-maker to genuinely consider all relevant material placed before them. The failure to do so constituted a jurisdictional error.

Consequently, the Court quashed the delegate's decision and remitted the matter to the Minister for redetermination according to law.

Orders