Chee (Migration)

[2018] AATA 27

Chee (Migration) [2018] AATA 27 (9 January 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Ee Ling Chee

CASE NUMBER:  1708273

DIBP REFERENCE(S):  BCC2017/517539

MEMBER:Alison Mercer

DATE:9 January 2018

PLACE OF DECISION:  Melbourne

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

Statement made on 09 January 2018 at 4:49pm

CATCHWORDS

Migration – Skilled (Provisional) (Class VC) visa – Subclass 385 (Temporary Graduate) –  English language proficiency requirements  –  Completed high school and tertiary education in Australia – Not undertaken a specified English test within the timeframe –  Ministerial intervention sought

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2 cls 485.212, 485.212(a)-(b)

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 8 February 2017. 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 31 March 2017 because the applicant did not have the required English language proficiency. The delegate noted that the applicant did not hold a specified passport and therefore had to have undertaken a specified English test in which she obtained the required scores, and that such a test had to have been undertaken in the 3 year period immediately prior to her making her visa application. The delegate acknowledged that the applicant had undertaken a PTE Academic test, which was a specified test for these purposes, in which she had obtained the required scores, but found that this was undertaken on 14 February 2017, after she had lodged her visa application. The delegate found that this could not satisfy cl.485.212, and that the applicant had indicated in her online visa application that she had not sat a specified English test in the 36 months before making her visa application.

4. The Tribunal received a review application from the applicant on 17 April 2017. It was accompanied by a copy of the delegate’s decision.

5. The applicant appeared before the Tribunal on 8 November 2017 to give evidence and present arguments. She confirmed with the Tribunal that she had not undertaken a specified English test in the 36 months prior to making her subclass 485 visa application, although in January 2017 she had booked to sit the PTE English test, at which point the earliest test date she could get was 14 February 2017. The applicant told the Tribunal that she had not undertaken an English test in the previous 3 years as she had been living in Australia since 2007. She completed her secondary schooling in Melbourne at Caulfield Grammar School, then was accepted into a Bachelor of Science degree at the University of Melbourne on the basis that her VCE met the University’s English proficiency requirement.  She completed that degree, then a Masters in Nursing Science degree, both of which were completed at the University of Melbourne. She was now undertaking her graduate year in nursing at St Vincent’s Hospital in Melbourne, which she was due to complete in February 2018.

6. The applicant told the Tribunal that after finishing her Bachelor of Nursing degree in November 2016, she was working full time as a medical receptionist. She was due to commence her graduate year as a nurse in February 2017, so she lodged her subclass 485 visa application online on 8 February 2017, to get this process underway. Her understanding was that she could then upload the necessary documents (such as her skills assessment and English test results) as she obtained then.  She said that she could not do so until she had made the online application, as the system would not allow documents to be uploaded in the absence of a visa application. The applicant said that her student visa was valid until 15 March 2017 but she did not want to leave making the subclass 485 visa application until then as she would already have commenced the graduate year program, which she knew would be very time consuming.  In response to the Tribunal’s query, the applicant said that she assumed that she could lodge the visa application and then either upload documents on her own initiative or provide them in response to a request from the Department (as she had done with previous student visa applications), so she was shocked to receive the refusal decision without having received any request from the Department for documents prior to the refusal decision being made. She noted that the online application process allowed her to answer ‘no’ to the question of whether she had undertaken an English test in the last 36 months and proceed to lodge the application and pay the application fee, without any warning that it was mandatory that she needed to have sat a specified English test before making the visa application. The applicant noted that as a matter of fact, she had high level English proficiency as demonstrated by her PTE Academic test results of 14 February 2017 and the fact that she had undertaken secondary and tertiary education in Australia and been employed by St Vincent’s Hospital for her graduate year.

7. The Tribunal acknowledged that the applicant clearly had high level English proficiency but noted that it was required to assess whether she met cl.485.212, and that this clause and the relevant written instrument setting out approved English tests and scores specified that any test undertaken had to have been undertaken in the 3 year period ending directly before the date on which she lodged her subclass 485 visa application. It noted that even though the applicant could show she had made her English test booking in January 2017, before lodging the visa application on 8 February 2017, she actually undertook the test on 14 February 2017, after lodging the visa application. The Tribunal indicated that there was no flexibility in the relevant legislative provisions to waive this requirement, even if it was clear that the applicant actually had the required level of English proficiency.

8. The applicant queried whether she could ask the Minister to intervene in the event that her review application was unsuccessful. The Tribunal noted that s.351 of the Act conferred on the Minister a non-compellable personal discretion to intervene to grant a person a visa in the event of an unsuccessful review application, and that guidelines for the kinds of cases which the Minister had identified as possible to intervene were set out on the Department’s website. It indicated that it would consider whether or not to refer the applicant’s case to the Minister but noted that even if it did so, it would be entirely up to the Minister as to whether or not he would intervene.

9. In relation to her present circumstances, the applicant told the Tribunal that she shares rental accommodation with her brother, who is completing an Engineering degree at the University of Melbourne.

10. The applicant also provided a number of documents to the Tribunal at the hearing, which included copies of:

    ·     graduation statements from the University of Melbourne for the applicant’s, Bachelor of Science degree, completed 3 December 2013, Master of Nursing Science degree, completed 16 December 2016;

    ·     year 10 report from Caulfield Grammar for the applicant (2008) (the applicant indicated that proof that she undertook years 11 and 12 – VCE – at the same school  was with her parents in Malaysia);

    ·     letter of engagement from St Vincent’s Private Hospital dated 4 August 2017 to the applicant for the position of Registered Nurse for 76 hours per fortnight;

    ·     letter to the applicant from St Vincent’s Private Hospital dated 14 November 2016 confirming her rotations for the Registered Nurse Graduate Program there, commencing 20 February 2017;

    ·     interim appraisal report for the applicant from St Vincent’s Private Hospital, dated 16 June 2017;

    ·     letter to the applicant from St Vincent’s Private Hospital dated 6 March 2017 confirming its offer of employment to her to commence from 16 March 2017 as a Registered Nurse Year 1 – Part Time;

    ·     confirmation dated 1 January 2017 from the PTE Academic test administrators that the applicant was booked to sit a PTE Academic test on 14 February 2017;

    ·     copy of the applicant’s PTE Academic Test Taker Score Report indicating that she obtained scores of 67 for listening, 75 for reading, 58 for speaking and 86 for writing (overall score of 71) in a test she undertook on 14 February 2017;

    ·     copy of applicant’s further PTE Academic Test Taker Score Report indicating that she obtained scores of 74 for listening, 83 for reading, 73 for speaking and 83 for writing (overall score of 79) in a test she undertook on 14 July 2017;

    ·     positive skills assessment issued to the applicant for her nominated occupation of Registered Nurse (not else classified) by the Australian Nursing and Midwives Accreditation Council on 28 February 2017; and

    ·     the applicant’s registration as a Nurse Registered Nurse (Division 1) issued by the Nursing and Midwifery Board of Australia on 29 December 2016.

11. 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 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)).

2. 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).

3. Based on the evidence provided to the Tribunal and the Department, the Tribunal finds that the applicant made her subclass 485 visa application on 8 February 2017 and further finds that she has undertaken the following English test:

• PTE Academic test on 14 February 2017 in which she obtained an overall score of 71, with scores of 67 for listening, 75 for reading, 58 for speaking and 86 for writing.

1. IMMI 15/062 provides that a PTE Academic test is a specified test, and the specified scores required for that test are an overall score of at least 50, with scores of at least 36 for the 4 test components (items 2 and 3 of IMMI 15/062).

2. It is not disputed that the applicant exceeded these scores in the PTE Academic Test she undertook on 14 February 2017.

3. However, item 4 of IMMI 15/062 stipulates that only a specified English test undertaken within the 3 years before the day on which the subclass 485 visa application was made can satisfy cl.485.212(a)(ii).  In this case, that period is 7 February 2014 to 7 February 2017, as the visa application was made on 8 February 2017.  The Tribunal finds that the English test undertaken by the applicant was not undertaken in the specified period.  As acknowledged by the applicant at hearing, she did not undertake another specified English test in the relevant period.

4. Accordingly, the Tribunal must find that the applicant does not meet cl.485.212(a)(ii) and thus does not meet cl.485.212 as a whole.

5. The Tribunal has no power to waive the specific requirements in cl.485.212 and IMMI 15/062 which prescribe the only ways in which that clause can be met. Nor (as discussed with the applicant at the hearing) does the Tribunal have the power to waive or overlook this requirement or to substitute its own opinion about the applicant’s English proficiency.

6. On the basis of the above, the Tribunal finds that 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. The Tribunal must also affirm the decision not to grant the second named applicant a subclass 485 visa, as it finds that he cannot satisfy the secondary visa criteria to be a member of the family unit of a person who holds a subclass 485 visa, and there is no evidence that he meets the primary visa criteria in his own right.

7. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:

8. The guidelines on unique or exceptional circumstances include compassionate circumstances regarding an applicant's health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation; or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.

9. There is no evidence before the Tribunal that the applicant’s case falls into any of the identified ‘inappropriate to refer’ circumstances listed on the Department’s website. The Tribunal notes that the applicant is well integrated into the Australian community, having been here since 2008, when she commenced year 10, and that she has now completed her secondary schooling and a Bachelor of Science and a Masters of Nursing Science, both from the University of Melbourne. The applicant is now a qualified, registered nurse and has just completed her professional year in that occupation. She has the required level of English proficiency for her profession, and that would have met the requirements of cl.485.212(a), had she sat the specified English test in the specified period. As the Tribunal has observed in relation to similar cases, at the time that the applicant made her visa application, the Department’s online application process did not clearly alert applicants to the consequence of not having undertaken a relevant English test prior to making the application, but allowed them to state ‘no’ and to continue with the visa application. Under these circumstances, the Tribunal considers that the application of the relevant legislation does lead to an unfair or unreasonable result in the applicant’s case, and accordingly, will refer the matter to the Minister.

10. 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

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

Alison Mercer
Member