Alamrani (Migration) - [2021] AATA 2568

Alamrani (Migration) [2021] AATA 2568 (11 June 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mrs Budur Alamrani
CASE NUMBER:  1928889
HOME AFFAIRS REFERENCE(S):          BCC2019/4039635
MEMBER:Simone Burford
DATE:11 June 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 11 June 2021 at 10:26am
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – application not accompanied by required evidence – International English Language Test System (IELTS) test – test undertaken outside of prescribed period – no discretion – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212
CASES
Kumar v Minister for Immigration and Border Protection [2014] FCA 1336
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 Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant applied for the visa on 14 August 2019. 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 (Cth) (the Regulations). The primary criteria must be satisfied by at least one applicant.
The delegate refused the visa on 24 September 2019 because the applicant did not meet the English language ability requirement prescribed in the Regulations.
The applicant appeared before the Tribunal on 18 May 2021 by telephone to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
Mrs Alamrani was not represented in relation to the review and indicated she did not require the assistance of an interpreter.
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.
As the delegate’s decision records, in the application for the visa the applicant answered ‘no’ to the question ‘Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?’.
The delegate found that the applicant had not provided any evidence that she held a passport of a type specified by the Minister and therefore did not satisfy cl 485.212(b).
Before the Tribunal, the applicant confirmed she did not hold a current passport from any of the countries specified by the Minister and that she held a passport from Saudi Arabia. In the present case, the Tribunal finds that there is no evidence that the applicant has held a passport of a type specified, and cl 485.212(b) is not met. As such the applicant must meet cl 485.212(a).
The delegate’s decision records that when making the visa application the applicant provided no evidence of having undertaken a prescribed English test within 3 years before the date of the visa application.
The applicant submitted to the Tribunal documents relating to the applicant’s completion of a Master of Education at Flinders University in December 2018; a copy of an International English Language Test System (IELTS) test of 15 December 2019; a copy of a certificate from the University of Toronto, School of Continuing Studies for Academic English dated 1 April 2016; and, a letter from the University of South Australia dated 25 February 2020 confirming the applicant’s current PhD studies.
As the applicant does not hold a passport of the type specified by the Minister she must meet the English language test requirements set out in the instrument. The tests specified in the instrument are:
a.an International English Language Test System (IELTS) test;
b.a Test of English as a Foreign Language internet-based test (TOEFL iBT);
c.a Pearson Test of English Academic (PTE Academic); or
d.a Cambridge English: Advanced (CAE) test; or
e.an Occupational English Test.
At the hearing the applicant confirmed she had not undertaken any of the specified English language tests in the 3 years (36 months) prior to the day the application for the visa was made. The applicant explained that she had thought her study at the University of Toronto would qualify for the purposes of the English language proficiency requirement. The Tribunal notes the applicant provided evidence that she completed a Certificate in ‘academic English’ at the University of Toronto, School of Continuing Studies on 1 April 2016. She achieved a level ‘60’ and her proficiency is indicated as ‘advanced’. The Tribunal notes that the grade report for the course includes a notation against the question ‘progress to the next level (Yes/No)’, where the applicant’s record says ‘yes’, that:
Advanced Academic Skills course for students who have successfully completed Academic English Level 60 (a final grade of 'B' or higher) OR has completed Academic English Level 60 with a lower grade that is accepted by the institution and program of their choice OR achieved a score on a standardized English test such as IELTS or TOEFL that permits them to study at the institution and program of their choice. Documentation is required to prove test score and intended school’s requirement.
The applicant said she had undertaken an IELTS test prior to coming to Australia as a student. She said this would have been about 5 months outside the 3 year window set out in the instrument. She undertook a further IELTS test in December 2019, following the delegate’s decision. Those test results had been submitted to the Tribunal and indicate the applicant had achieved the required test scores.
The applicant made the point that she had provided results from Canada which she submitted can be equal to the IELTS. Further, she had completed her Master’s at Finders University in English and was now undertaking PhD studies in Australia and this should be sufficient to establish her English proficiency. She indicated she had invested significant financial resources in her studies and was part-way through her PhD course and she was hoping to continue her studies. The applicant also noted that:
·The online application form for the visa did not alert applicants to the fact they needed to submit an English test result in the same way it prevented lodging an application if passport details were omitted. She queried why this was the case and noted it may lead to applicants making errors in the process.
·She queried why the Department did not notify applicants of the failure to provide the required evidence of English language proficiency and advise applicants to withdraw their applications to enable them to undertake the necessary tests.
·She noted that the impact of a refusal was that she had limited options to apply for other visas and that this would cause her particular hardship as she could not complete her studies and her spouse was in Australia on a student visa.
·She queried why, if the Tribunal did not have the discretion to assess English proficiency outside the Regulations or to accept later tests satisfying the score requirements in the instrument, there was any process for review provided in such decisions.
At the hearing the Tribunal explained to the applicant the requirements of cl 485.212. It explained that to meet the requirement the applicant had to provide evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified. It explained that the period specified is 3 years (36 months) before the day on which the visa application was made.
The Tribunal explained to the applicant that the criteria must be met. The applicant insisted her IELTS test from December 2019 showed she did meet the criteria. However, the Tribunal pointed out that the criteria includes the requirement that the applicant has undertaken a specified English language test within the 3 years (36 months) before submitting her visa application. The test from December 2019 did not meet that requirement. The Tribunal noted that the critical date relating to the test is the date the test was undertaken. Under the current definitions, an English language proficiency test undertaken after the date of application cannot be accepted for the purposes of the Schedule 2 criteria and the applicable points test provision for the visa.[1] The courts have found that there is no discretion in meeting that requirement.
[1] See Kumar v MIBP [2014] FCA 1336, citing with approval Singh v MIBP [2014] FCA 185 and Datchinamurthy v MIBP [2014] FCCA 258 where the Court referred to the ‘very clear’ words of reg 1.15C. See also Milanes v MIBP [2015] FCA 1105 and the cases cited there at [56]. Each of these judgments concerned reg 1.15C, however the provisions are materially indistinguishable from IMMI 15/062. Singh v MIBP [2015] FCCA 1533 provides a stark example of the effect of the various amendments to the definition of ‘competent English’. In that case the applicant’s successful test was taken just outside the permissible 2 year period before the date of application, which was shortly before the introduction of the 3 year period.
The Tribunal notes the applicant’s submissions that the online application process was confusing and did not alert the applicant to the need to provide evidence of the English language requirement. There was no evidence regarding the form of the online application before the Tribunal. However, the Tribunal understands the applicant’s concern, which has been expressed on similar applications before the Tribunal. While the Tribunal may be sympathetic to these concerns, the format of the application cannot change the criteria for the visa. As noted by Beach J in Kumar v Minister for Immigration and Border Protection [2014] FCA 1336 at [43]:[2]
even if he was misled, that does not alter the relevant criterion that had to be satisfied or the Tribunal’s task under section 65 of the Act. There was no dispute that the criterion had not been satisfied. Moreover, the form of the application could not rewrite the statutory criterion which the Tribunal was bound to consider and apply.
[2] See also Awan v Minister for Immigration [2020] FCCA 3134 at [38].
Even in circumstances of misleading or confusing information from the Department, including in circumstances where the application form for the visa was misleading, the Tribunal’s role is restricted to performing this task.[3]
[3] With respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285, Mohamed Farook v MIBP [2014] FCA 1017 at [55], and Kumar v MIBP [2014] FCA 1336 at [43].
While the Tribunal has sympathy for the applicant’s circumstances, the Tribunal explained that it does not have any discretion to waive this requirement.[4] The Tribunal understands the applicant’s frustration with the process, which she regards as ignoring evidence of her English language proficiency and stifling her efforts to continue study. The Tribunal explained that while it was sympathetic to the applicant’s circumstances it did not have any discretion to find that she met the English language requirement on some other basis than was specified in the instrument. This included results of the IELTS test completed after the application was made. This should not be regarded as an assessment by the Tribunal that she lacked English language skills but that she failed to meet the criteria clearly set out in the legislation.
[4] See for example Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [10] and [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140 at [23]-[24]; Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274 (Kendall J, 18 February 2021) at [45]-[58]; Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) at [18]-[19]; Kumar v Minister for Immigration and Border Protection [2017] FCCA 2406 at [15] (affirmed on appeal by Robertson J in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24]); see also Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [41], where Mortimer J reached the same conclusion about the test timing requirement in reg 1.15C of the Regulations.
The Tribunal accepts that the applicant has now undertaken a specified English language test – the IELTS test undertaken on 15 December 2019 – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. Accordingly, it was not undertaken in the period specified in the instrument, within the 3 years before the day on which the application was made. The Tribunal is not satisfied the visa 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.
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.
DECISION
The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Simone Burford
Member