ANTONITES (Migration)

[2023] AATA 1611

ANTONITES (Migration) [2023] AATA 1611 (23 May 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Christina Maria ANTONITES
Ms CORNE GILDENHUYS

REPRESENTATIVE:  Mr ADOLF JACOBUS JONKER VAN ZYL

CASE NUMBER:  2216889

HOME AFFAIRS REFERENCE(S):          BCC2021/2536974

MEMBER:Namoi Dougall

DATE:23 May 2023

PLACE OF DECISION:  Sydney

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

Statement made on 23 May 2023 at 4:17pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – PTE English language test taken after the visa application – referral for Ministerial Intervention – research on digital mental health options for marginalised communities – decision under review affirmed          

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

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 Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 31 December 2021. 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. 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 5 November 2022 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 23 May 2023 to give evidence and present arguments.

5. The applicants were represented in relation to the review.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) 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(1)(a)); or

   ·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2) however, this is not relevant to the circumstances of this matter.

3. 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).

4. The applicant in this case stated in the visa application that he had not undertaken an English test in the last 36 months and had not provided evidence of having achieved the relevant scores in an English language test as required by the relevant instrument.

5. On 21 February 2023, the applicant provided to the Tribunal a receipt for an English language test to be undertaken on 15 November 2022.

6. On 9 May 2023, The Tribunal sent the applicant a natural justice letter which referred to the Department refusing the Subclass 485 visa as the applicant had not met the requirements of reg.485.212 as the applicant has not undertaken a specified English language test and achieved the minimum results withing the three years before the date on which the visa application was made. Nor did the applicant hold a specified passport. The Tribunal provided a copy of the relevant legislative instrument which set out the specified language tests and scores and the period within which the specified scores are to be achieved.

7. The Tribunal also referred to in its letter of 9 May 2023, to the PTE English language test results for the test undertaken on 15 November 2022 and stated that since the test was undertaken after the date of your application it cannot be relied upon to meet the requirements of reg.485.212. The Tribunal then explained that as the applicant’s Subclass 485 visa application was not accompanied by evidence that he had undertaken an English language test between 30 December 2018 to 30 December 2021 where he achieved the relevant test scores, the Tribunal may find that the applicant does not meet the requirements of reg.485.212. Further, if the Tribunal makes this finding, then the Tribunal will affirm the Department’s original decision.

8. On 18 May 2023, the applicant responded to the Tribunal’s letter of 9 May 2023 with a submission and supporting documents. In the submission it was conceded that the applicant did not meet the requirements of cl.485.212 and it was her intention to seek Ministerial Intervention. Provided with the submission was a statutory declaration of the applicant and letters of support from the Pro vice Chancellor and members of the Queensland University of Technology (QUT).

9. As the applicant has not undertaken a language test specified in an instrument and therefore, has not achieved, within the period specified in the instrument, the score specified the Tribunal is satisfied that the applicant does not meet the requirements of cl.485.212(20(a).

10. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212.

11. 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.

12. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 485 visa as it finds that she does not meet the secondary visa criteria requiring her to be a member of the family unit of a person who holds a subclass 485 visa, and there is no evidence that the second named applicant meets the primary visa criteria in her own right.

Ministerial Intervention

1. The applicant has requested that the Tribunal refer the case to the Department for consideration by the Minister pursuant to s 351 which gives the Minister a discretion to substitute for a decision of the Tribunal another decision that is more favourable to the applicant, if the Minister thinks that it is in the public interest to do so.

2. At the hearing the applicant stated that she is a digital inclusion and participation researcher at QUT and she participates on digital mental health options for marginalised communities in Australia inducing cultural and linguistic diverse communities and the LGBTIQ+ community as these communities have worse mental health outcomes than the most of Australian society. The applicant is also as sessional academic in the Department of Communication in the area of digital communication. The applicant is involved in courses at undergraduate and post graduate level. The applicant is also part of the team helping the QUT to transfer to a new academic learning management system which houses the entire curriculum content and is where students will get all their learning material and submit assignments.

3. At the hearing the applicant stated Australia is facing a mental health crisis. Before the COVID-19 pandemic 1 in 10 psychologists were not taking new patients, and now it is 1 in 3. There is a need for new ways to support patients and digital tools can help but the research was not there even though these tools was seen to work during the COVID-19 but more research is required as how to use those tools in the most efficient and cost effective way. Marginalise communities respond better to support that is crafted to their special needs and in the past that would have been a very expensive and require lots of people to develop but digital tools can do the same for many different groups in a culturally specific way at much less cost. The next step with the research is to go out into communities to find out what are the needs for those communities so they can tailor the tools to better support the communities. The research is within the Federal Government’s Mental Health strategy and the five pillars contained in that strategy. The tools could support more community groups including in rural and regional areas where resources are scare. In support of the above the applicant provided a press release from Australian Psychologist Society dated 8 April 2022.

4. Provided to the Tribunal in support was the applicant’s curriculum vitae and letters of support from:

   ·    Mr Kevii Ashford-Rowe, Pro Vice Chancellor (Learning & Teaching), Learning and Teaching Unit Education Portfolio, Academic Division of QUT.

   ·    Dr Natasha Giardinia, Principal Learning Analyst and LMS+ Project Team Leader at QUT; and

   ·    Dr Elija Cassidy, Chief Investigator at the Digital Media Research Centre at QUT (two letters).

5. Dr Cassidy in his second letter of support stated in relation to the applicant’s research work as follows:

   She plays an important role in a research project on improving digital mental health support for culturally and linguistically diverse Australians, which contributes to critical gaps in ensuring inclusive digital mental health support for all Australians. The project explores how community support organizations may productively leverage digital technologies to reduce mental health support gaps. The key research activity undertaken in this project to date has been to develop a detailed map of the digital networks that underpin the Australian mental health sector. This project is significant because it addresses an urgent real-world problem prioritised by the Australian government in its National Digital Health Strategy (for more information see >

   Dr Cassidy also refers to the applicant’s teaching work with Master of Communication students on courses aimed at equipping students: “with advanced knowledge and understanding of how Artificial Intelligence (AI), algorithms, and other forms of automation impact society; to equip students with knowledge on current debates in digital society; and to prepare students to conduct advanced independent research”.

6. IN particular in relation to the applicant’s teaching work with undegradutate students, Dr Cassidy states as follows:

   Dr. Antonites’ experience in supporting students who enter university spaces facing overlapping forms of social and economic disadvantage that shape their entry to university is especially valuable in these introductory courses. Many of our first-year students and culturally and linguistically diverse students require the kind of specialist support Dr Antonites excels in to ensure these students’ retention and success at university.

7. The Tribunal has considered the applicant’s case and the ministerial guidelines relating to the discretionary power set out in the Department’s Procedures Advice Manual (PAM3) and will refer the matter to the Department.

DECISION

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

Namoi Dougall
Member