Abhishek Kumar (Migration)

[2018] AATA 1123

Abhishek Kumar (Migration) [2018] AATA 1123 (16 March 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Abhishek Kumar
Miss Teena Nanda

CASE NUMBER:  1728086

DIBP REFERENCE(S):  BCC2017/3366579

MEMBER:Susan Trotter

DATE:16 March 2018

PLACE OF DECISION:  Brisbane

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

Statement made on 16 March 2018 at 3:24pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visas – Subclass 483 (Temporary Graduate) – English language ability – Language test completed not within three year requirement – Failing to hold passport from specific country 

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2 cl 485.212, 485.311

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 and Border Protection (the Minister) 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 15 September 2017. The completed application form indicates that the relevant subclass in this case is Subclass 485 (Temporary Graduate) (Post-Study Work), 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.

3. The delegate refused the visas on 31 October 2017 on the basis that the primary visa applicant had not satisfied the English language ability requirement for the visa and because the secondary visa applicant was not a member of the family unit of a person who held a Subclass 485 visa having satisfied the primary criteria for the visa.

4. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 13 November 2017. A copy of the delegate’s decision was provided with the application.

5. The applicants appeared before the Tribunal on 12 March 2018 to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

ISSUES

1. The criteria for the grant of a Subclass 485 visa are set out in Part 485 of Schedule 2 to the Regulations.

2. One of the primary criteria for grant of a Subclass 485 visa is set out in cl.485.212, which provides as follows:

485.212

The application was accompanied by evidence that:

(a)  the applicant:

(i)has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

(ii)has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

(b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

1. The relevant instrument specifying language tests, relevant periods, scores and passports is IMMI 15/062, which includes as follows:

(a)  The specified tests are an International English Language Test System (IELTS), a Test of English as a Foreign Language internet-based Test (TOEFL iBT), a Pearson Test of English Academic (PTE Academic), a Cambridge English: Advanced (CAE) test or an Occupational English Test (OET). (paragraph 1 of IMMI 15/062).

(b)  The language test must have been undertaken within the three years before the day on which the application was made. (paragraph 4 of IMMI 15/062).

(c)  The minimum scores as set out in paragraph 3 of IMMI 15/062.

(d)  The passports specified are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. (paragraph 6 of IMMI 15/062).

1. The secondary criteria to be satisfied at the time of application include that the visa applicant is a member of the family unit of, and made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria: cl.485.311.

2. It follows that the issues to be determined by the Tribunal are as follows:

Primary visa applicant

(a)  Was the visa application accompanied by evidence that the primary visa applicant had undertaken a language test specified in IMMI 15/062 within the three years before 15 September 2017 and achieved the applicable score specified in IMMI 15/062?; or

(b)  Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

Secondary visa applicant

(c)  Was the secondary visa applicant a member of the family unit of, and had they made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 – Was the visa application accompanied by evidence that the primary visa applicant had undertaken a language test specified in IMMI 15/062 within the three years before 15 September 2017 and achieved the applicable score specified in IMMI 15/062?

1. The primary visa applicant responded “yes” to a question posed in the visa application as to whether he held a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland or had undertaken an English test within the last 36 months demonstrating that he met the English language requirement.

2. The primary visa applicant subsequently provided test report forms for IELTS tests undertaken on 31 July 2010, 5 April 2014 and 4 November 2017.

3. The primary visa applicant provided written submissions to the Tribunal prior to the hearing as follows:

   Dear Sir/Madam,

   The purpose of this letter is to provide you with an evidence and context of my personal and professional capabilities, which reflects my competency in English language. The documents are duly attached and marked as references in the letter wherever specific claims are made.

   English has always been my first language throughout my educational qualifications, in line with which I competed the undergraduate degree in Medicine^1,2 followed by a master degree in health promotion^{3, 4} (University of the Sunshine Coast, 2017, Australia). Being a highly skilled and motivated professional, my ambition is to integrate these skills into practice with an aim to provide a valuable contribution in the Australian economy.

   As a result of this continuing enthusiasm, I have gained appreciations from my colleagues and reference letters from highly respected professionals during this period. In these letters, apart from job recommendation, I would like to draw your attention to one common aspect these letters possess, which is an emphasis on my “language and communication skills”. First letter⁴ that I received in 2015 portrays me as “an excellent communicator in addition to possessing liaising competencies with professional conduct”. The second letter⁵ “highlights the acquired professional skill-set clearly indicating the level of my abilities in communication.” The third letter⁶ is from a highly qualified professional working in the “Language and Education Department” of the University of the Sunshine Coast, which resonates with my high competency level claim in English language and states “his oral skills are of native speaker level and his written and reading skills are clearly of the highest proficiency, having achieved a High Distinction⁷ for his written assignment which is based on the Australian Qualifications Framework Level 9 (Masters).”

   Moreover, I have given IELTS in the year 2010⁸, 2014⁹ and 2017¹⁰ in which my score has always fulfilled the criteria to work in Australia and adds to the evidence. It is to be noted that latter (2017 exam) was given in just “three days” (with panic) after I got the letter of denial for my 485 visa application.

   Additionally, I have also successfully completed English for Academic Purposes (EAP2)¹¹ from the University of the Sunshine Coast before commencing the master degree program.

   Hence, In the light of above claims, context and provided evidence, I sincerely wish that my case would be dealt with empathy and compassion so as to prevent any potential future devastation of my ambition, career or mental health, as a consequence.

   Kind Regards,

   Abhishek Kumar

4. At the hearing on 12 March 2018, the Tribunal discussed with the primary visa applicant the requirements of cl.485.212 and provided him with a copy of that clause.

5. The Tribunal discussed with the primary visa applicant that the English for Academic Purposes test referred to in his submissions, although undertaken in the three year period prior to the visa application, was not a specified test pursuant to IMII 15/062, and he could therefore not satisfy the requirement on the basis of that test. The Tribunal also raised with the primary visa applicant at hearing that none of the IELTS tests completed by him, on 31 July 2010, 5 April 2014 and 4 November 2017, were completed within the three years immediately prior to the date of the visa application, that is, in the period 15 September 2014 to 14 September 2017, as required, albeit that he has achieved the specified scores for all three tests.

6. The primary visa applicant’s evidence and submissions to the Tribunal at hearing included as follows:

(a)  He has only realised at the hearing that the whole issue is very technical;

(b)  When it comes to his English language proficiency, his appearance at the hearing speaking with the Tribunal proves his English proficiency;

(c)  He has reference letters from a senior lecturer.

(d)  He is a good student and has post graduate qualifications.

(e)  There were some technical problems when he and his wife were lodging the applications. His wife has also lodged their visa applications previously including her dependent visa, visitor visa applications for his parents and their renewal applications when his course was extended. It would therefore be reasonable to say that she has knowledge of how to lodge a visa application. However when it came to lodging the Subclass 485 visa applications, there was not any mention of what the mandatory requirements were for the visa to be approved.

(f)    He answered yes in the visa application form to the question about language requirements because he made the assumption that the University allowed him to pursue an advanced English course and therefore he had the necessary language requirements on that basis.

(g)  Legislation and laws are meant for the benefit of people and society and if someone’s life and future and whole career is at stake, the matter should be reviewed again based upon the specific case.

(h)  There was no clear mention in the application process of what was required. They were not aware that it was a decision ready application.

1. With prior visa applications, if a document was missing or needed, the Department would follow up the required document. There was no mention that it was a decision ready application. From their point of view, they were just doing the right thing and doing the same thing as they had with other visa applications. There was no chance to submit the required documents. The documents to show that he completed the required study did not arrive until a month after his study and he therefore did not have the chance to supply them.

(j)    When the applications were lodged, there was a statement at the end of the lodgment process that no documents were needed and if needed, the documents would be requested of them. That supports their submission that the process via the Department website was not for a decision ready application.

(k)   It was only when they went to a migration agent afterwards that they found out it was a decision ready application.

(l)    They have checked and the Department has now changed the whole layout and application process for a Subclass 485 visa and all the details of what is required are now included as part of the process.

(m) It was only a couple of days after (the visa application) that they received the list of documents that had to be submitted and it was an exhaustive list. At that stage he had still not received any official documents from the University but he planned to just lodge the documents online when they were received.

(n)  He and his wife were undergoing a difficult time in relation to other matters because his wife was the subject of false allegations at her work. The matter was subsequently cleared and she was proved innocent but they were under extreme stress dealing with that at the time.

(o)  When the Department issued them with the decision that the visas were refused, he was in a panic and booked an online test three days after, the one undertaken on 4 November 2017. He was in a panic because he thought the visa refusal would ruin his whole future. He lost his ability to think because his future and career was at stake.

(p) He does respect cl.485.212 but was not aware of the requirements of that clause previously.

1. The secondary visa applicant’s evidence and submissions to the Tribunal at hearing included as follows:

(a)  It was not written anywhere that a Subclass 485 application was a decision ready application.

(b)  When asked to upload documents when lodging the visa applications, there were different sections for documents – additional, required and recommended. They provided all the documents but the IETLS test was in the recommended section and not in the required section. That was therefore very misleading. They thought if the Department needed anything, they would ask, as had been their prior experience.

1. The Tribunal discussed with the primary visa applicant that it had taken into account all of the matters raised but there was no discretion that could be taken into account in relation to the English language requirement for a Subclass 485 visa to be granted. Further, based on the evidence before it, the Tribunal would be unable to conclude that, as required, the visa application had been accompanied by evidence that a specified language test, with the specified score, had been undertaken in the specified period, that is, in the three years before the date of the visa application on 15 September 2017. The primary visa applicant again repeated the matters already raised.

2. Having had regard to all matters, the Tribunal is satisfied that the primary visa applicant has completed a language test as specified however is not satisfied that the test was undertaken within the three years before 15 September 2017 as required.

3. The Tribunal finds that the primary visa applicant therefore does not satisfy cl.485.212(a)(ii), and consequently does not satisfy cl.485.212(a) and therefore the visa application was not accompanied by evidence of meeting that sub clause.

Issue 2 - Does the primary visa applicant hold a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

1. The primary visa applicant stated in the visa application that he holds an Indian passport. He confirmed this information at hearing.

2. The primary visa applicant has provided the details of his Indian passport and no other. Therefore, the Tribunal finds that he does not hold a valid passport of a type specified by in IMMI 15/062.

3. The Tribunal finds that the primary visa applicant therefore does not satisfy cl.485.212(b) and consequently the visa application was not accompanied by evidence of meeting that sub clause.

Issue 3 - Was the secondary visa applicant a member of the family unit of, and had they made a combined application with, a person who holds a Subclass 485 visa on the basis of satisfying the primary criteria?

1. Accordingly, as the primary applicant does not satisfy the primary criteria for the grant of a Subclass 485 visa, the Tribunal finds that the secondary applicant does not meet the requirements of clause 485.311 which requires, amongst other things, that they are a member of the family unit of a person who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the visa.

Conclusion

1. On the basis of the above, the applicants do not meet the requirements of cl.485.212 and cl.485.311 respectively of Schedule 2 to the Regulations and therefore do not satisfy the criteria for the grant of Subclass 485 visas. As this is the only relevant subclass in this case, the decision under review will be affirmed.

OTHER MATTERS

1. The Tribunal acknowledges that the primary visa applicant failed to appreciate that he was required to provide evidence with his visa application of meeting the English language requirement and that failing to hold a passport from a specific country, that evidence was required to include evidence of him having completed a specific test, obtaining a specific score, within the three years prior to the visa application. The Tribunal accepts that the primary visa applicant is dismayed that such a seemingly technical oversight could derail his entire planned future and career, particularly given that he arguably has the required English proficiency but is being hampered on the technical basis of not having undertaken a test at the correct time and provided evidence of that. However, the Tribunal is required to be satisfied that cl.485.212 is met, and that it is met in the way set out in in the clear wording of the clause, regardless of the reasons why the requirement is not met. The Tribunal is bound to apply the law as it is written. There is no discretion for the Tribunal to waive the need to meet cl.485.212.

2. The Tribunal notes that the Minister has an entirely discretionary power pursuant to s.351 of the Act to intervene in a case to grant a visa, where the outcome of a review application has been unsuccessful. The Minister's guidelines for intervention are set out on the Department's website: remains open to the applicants to consider these guidelines and make such a request if they believe that they have sufficient grounds to warrant Ministerial intervention.

DECISION

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

Susan Trotter

Member