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…

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: [2021] AATA 2568
Decision Date: 11 June 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered an application for a Skilled (Provisional) (Class VC) visa, Subclass 485, made by the applicant, Ms Alamrani. The dispute centred on whether the applicant met the English language proficiency requirements stipulated by the Migration Regulations 1994.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause mandates that an application for this visa must be accompanied by evidence of either holding a specified passport or having undertaken a prescribed English language test within a specified period and achieving a specified score. The relevant instrument, IMMI 15/062, outlines the acceptable tests, scores, periods, and passport types.

The Tribunal found that the applicant did not hold a passport from any of the countries specified in the instrument, thus failing to meet clause 485.212(b). Consequently, the applicant was required to satisfy clause 485.212(a) by providing evidence of a prescribed English language test. The applicant confirmed that she had not undertaken any of the specified tests, such as IELTS, TOEFL iBT, PTE Academic, CAE, or OET, within the 36 months preceding her visa application. While the applicant provided evidence of completing an academic English course at the University of Toronto in 2016, this did not constitute a prescribed English language test for the purposes of the visa subclass. The Tribunal concluded that the applicant had not met the English language proficiency requirements.

Therefore, the Tribunal affirmed the delegate's decision not to grant the applicant the Skilled (Provisional) (Class VC) visa, Subclass 485.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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); ord.a Cambridge English: Advanced (CAE) test; ore.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.

Decision

Reasons for decision

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 BurfordMember

Ratio Decidendi

Legal Principle Established

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