Bjork (Migration)

[2020] AATA 2850

Bjork (Migration) [2020] AATA 2850 (29 May 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Emma Charlotte Bjork

CASE NUMBER:  1812812

DIBP REFERENCE(S):  BCC2018/1137698

MEMBER:Simone Burford

DATE:29 May 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 29 May 2020 at 2:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – English language proficiency requirement not met – English test was undertaken after visa application was lodged – no discretion to waive English requirement –decision under review affirmed

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

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 to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 March 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.

3. The delegate refused the visa on 17 April 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 her application for review.

4. The applicant appeared before the Tribunal on 28 May 2020 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner, Mr Jason Scott Dawson.  The Tribunal notes the applicant indicated Mr Dawson was present with her throughout the hearing.

5. The applicant was not represented in relation to her application for review.

6. 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 with the Tribunal regarding the telephone hearing and indicated she was able to hear the Tribunal clearly. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

9. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.

10. 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 485.212(b). The applicant provided a copy of her Swedish passport issued on 23 December 2019 to the Tribunal and confirmed at the hearing that she did not hold a passport from any of the countries specified in the instrument.

11. In the present case, 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).

12. The Delegate’s decision records that when making the visa application the applicant declared in her application form that she had not undertaken an English language test in the 36 months prior to making the application.

13. The applicant did not provide evidence of an English language test when she lodged their application. The applicant has not provided the Tribunal with documentary evidence she undertook an English language test in the 36 months prior to lodging her application on
    watermark9 March 2018. 

14. The applicant has provided the Tribunal with documentary evidence she undertook an International English Language Test System (IELTS) English language test on 12 May 2018.  This indicates the applicant achieved an overall score of 8.0.

15. At the hearing the applicant set out the circumstances which led to her not meeting the English language requirement. She indicated that she had misunderstood the information on the Department’s website concerning the visa requirements.  She thought that she could provide evidence of the two degrees she had undertaken in Australia, a Bachelor of Arts (Psychology and Counselling) from Edith Cowan University and a Master of Social Work from the University of Western Australia as evidence of here English Language proficiency.  This evidence was supported by Mr Dawson who testified that the information on the Department’s website was misleading. He observed that it appeared the information had since been amended.

16. The applicant testified she had given birth to an Australian citizen child in February 2019.  Both she and Mr Dawson testified that the refusal of the visa could cause hardship to the family as they may be forced to separate if the applicant and her child returned to Sweden. Mr Dawson observed that due to Covid-19 restrictions he would be unable to travel with them to Sweden.

17. 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 three years before the day on which the visa application was made.

18. The Tribunal explained that regardless of any ambiguity or misreading on information on the Department’s website at the time of the application the law requires the applicant to have already taken an English language test by the time she made her visa application.  The Tribunal’s task is to determine whether the applicant meets the criterion.[1] The Tribunal explained that it does not have any discretion to waive this requirement.

    [1] Analogous to decisions where the issue was misleading information on the application form, 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].

19. The Tribunal indicated to the applicant that with respect to any change in her personal circumstances she should consider seeking migration advice regarding her visa options in the event the Delegate’s decision was affirmed.

20. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS English language test - and achieved the specified score.  However, it notes the test was undertaken after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made.  The Tribunal is therefore 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.

21. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

22. 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

23. The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    Simone Burford
    Member