Awan (Migration) - [2020] AATA 4638

Awan (Migration) [2020] AATA 4638 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Muhammad Qasim Awan
CASE NUMBER:  1829963
DIBP REFERENCE(S):  BCC2018/3140630
MEMBER:Simone Burford
DATE:4 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 04 June 2020 at 5:08pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test taken after application made and specified score achieved – previous visa about to expire – unclear evidence of advice received from department – advice does not change requirements – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212
CASES
Baig v MIBP [2018] FCCA 2986
Farook v MIBP [2014] FCA 1017
Kumar v MIBP [2014] FCA 1336
Sandhu v MIBP [2013] FCCA 2285
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 applicant applied for the visa on 20 August 2018. 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 27 September 2018 because the applicant did not have the required English language proficiency. The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.
The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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 applicant did not raise any concerns regarding the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
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…

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: [2020] AATA 4638
Decision Date: 4 June 2020

CaseChat Overview and Summary

This matter concerned an application for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), heard by Member Simone Burford of the Tribunal. The applicant sought review of a decision not to grant the visa, with the central dispute revolving around whether the applicant met the English language proficiency requirements as stipulated by the relevant legislative instrument.

The Tribunal was required to determine whether the applicant satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause outlines two alternative pathways for demonstrating English language proficiency: either by holding a specified passport or by undertaking a specified language test with a minimum score within a defined period. The Tribunal also considered whether the applicant had provided evidence of undertaking the specified language test after lodging the application and achieving the required score.

The Tribunal found that the applicant did not hold a passport from a country specified in the relevant instrument (IMMI 15/062), thus failing to meet clause 485.212(b). Regarding clause 485.212(a), while the applicant provided evidence of an IELTS test taken on 4 September 2018, this date was after the visa application was lodged. The delegate's decision, which the Tribunal affirmed, noted that the applicant had answered "No" to a question on the application form regarding English language proficiency, and the provided evidence of test booking was for a date prior to the test result. The Tribunal concluded that the applicant had not met the requirements of clause 485.212, as the evidence did not demonstrate that the language test was undertaken and the specified score achieved in accordance with the regulations.

Consequently, the Tribunal affirmed the decision not to grant the applicant the Skilled (Provisional) (Class VC) visa.

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. 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). The delegate’s decision records that when making the visa application 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 competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?The Delegate’s decision also notes that the declaration form goes on to state:Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 Months that demonstrated you have at least competent English. The delegate found that the applicant held a Pakistani passport which was not an eligible passport as specified by the Minister. Therefore, the delegate found that the applicant had not provided any evidence that he held a passport of a type specified by the Minister and did not satisfy 485.212(b). Before the Tribunal, the applicant confirmed he did not hold a current passport from any of the specified countries. He testified that he held a Pakistani passport. Accordingly, 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 evidence of having undertaken an International English Language Test System (IELTS) English language test on 4 September 2018. He also provided evidence of payment and booking details of the IELTS test for 22 August 2018. The delegate’s decision notes that both dates are after the application was lodged and on that basis the applicant did not satisfy 485.212(a)(ii). The applicant has submitted evidence to the Tribunal, including a copy of his IELTS test results from 4 September 2018, his skills assessment results, certificates from the Perth College of Business and Technology, and TRA provisional Skills Assessment Application result from the Department of Education and Training dated 6 September 2018.

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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