Daniels (Migration)

[2018] AATA 2257

Daniels (Migration) [2018] AATA 2257 (18 May 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Natalie Brenda Daniels
Mr Mark Daniels
Mr Jesse Daniels

CASE NUMBER:  1715148

DIBP REFERENCE(S):  BCC2017/2141129

MEMBER:Katie Malyon

DATE:18 May 2018

PLACE OF DECISION:  Sydney

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

Statement made on 18 May 2018 at 11:49 am

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for language test to be undertaken prior to visa application -  Language test undertaken after visa application – Decision affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 17 June 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 visas on 28 June 2017 because the first named applicant, Mrs Natalie Brenda Daniels, did not accompany her Subclass 485 visa application with evidence of having the required English language proficiency.  The second named applicant and the third named applicant are members of the family unit of Mrs Daniels.    

4. Mrs Daniels is a South African national.  She and her husband, Mr Mark Daniels (the second named applicant), appeared before the Tribunal on 16 May 2018 to give evidence and present arguments.  The applicants were represented in relation to the review by their registered migration agent, who also attended the hearing.  This was the same representative who assisted them with their Subclass 485 visa application.   

5. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mrs Daniels satisfies cl.485.212 of Schedule 2 to the Regulations which requires that the application was accompanied by evidence that she:

   ·has undertaken a language test specified in a legislative instrument and has achieved, within the period specified, the score specified in accordance with any specified requirements (cl.485.212(a)); or,

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

7. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that Mrs Daniels has held a passport of a type specified (that is, from the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland) and, as such, cl.485.212(b) is not met. Accordingly, Mrs Daniels must meet cl.485.212(a) of the Regulations.

8. Clause 485.212(a) of the Regulations and IMMI 15/062 require an applicant to have undertaken one of 5 English language tests and achieved the requisite score in the 3 years before lodgement of the visa application.

9. As discussed with Mrs Daniels during the hearing - and as noted by the delegate in the decision to refuse her Subclass 485 visa application – she did not accompany her Subclass 485 visa application with any evidence to demonstrate that she meets the requirements of either cl.485.212(a) or cl.485.212(b) of the Regulations. In response to the question on the first page of the online application form about meeting English language requirements, Mrs Daniels responded ‘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? 

10. Text below this question notes as follows:

    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 language test within the last 36 months that demonstrates you have met the English language requirement (emphasis added).

11. Furthermore, in response to the specific question on the penultimate page of the Subclass 485 visa application as to whether she had undertaken an English language test within the last 36 months, Mrs Daniels confirmed that she had not undertaken a test in that timeframe: accordingly, she did not provide any details regarding name of the test, date of the test, test reference number or country where the test was undertaken. 

12. The Tribunal questioned Mrs Daniels as to what prompted her to respond in the negative to the questions regarding undertaking an English language test in the 3 years before her application when it was clear that she could not meet the alternative criterion of holding a passport from the USA, UK, Canada, New Zealand or Ireland.  Mrs Daniels indicated that she was ‘not really clued up’ about requirements and so relied on her representative.  She said she booked in for the first available test on 29 July 2017 and she could not get an earlier date.  Mrs Daniels said she could not recall when she first saw her representative and discussed plans to apply for a Subclass 485 visa.  Mr Daniels confirmed his wife’s evidence that they relied on their representative as they were not clued up about requirements for the visa.  Mrs Daniels added that, when she studied for her Diploma in Disability in Australia, she was not required to demonstrate her English language competency because, as a South African national, English is her main language and so she was not required to undertake an English language test to enrol in her course. 

13. When asked for his comments, the representative advised that on the 19 June 2017 (that is, 2 days after he lodged of Mrs Daniels’ Subclass 485 visa application), he provided evidence to the Department that Mrs Daniels had booked an IELTS test to be undertaken on 29 July 2017. The representative provided the Tribunal at the hearing with a copy of Mrs Daniel’s IELTS test report dated 29 July 2017 confirming that she scored 7.5 on Listening, 6.0 on Reading, 6.0 on Writing, 8.0 on Speaking with an Overall Band Score of 7.0. The Tribunal notes in passing that these scores are above the minimum scores as set out in IMMI 15/062. The representative stated that he questions the validity of cl.485.212(b) of Schedule 2 to the Regulations which enables the Minister, in a legislative instrument, to exempt holders of certain passports from demonstrating that they have undertaken an English language test in the 3 years prior to lodgement of their Subclass 485 visa. In his opinion, South Africans should be included in the list of nationals excluded from the need to demonstrate their competency in English. The Tribunal observed that the law, as set out in cl.485.212 of Schedule 2 to the Regulations and IMMI 15/062, has been in place since 18 April 2015. The representative made no comment.

14. In her oral evidence, Mrs Daniels acknowledged that she did not hold a passport of a type specified in the legislative instrument IMMI 15/062. She also acknowledged that she did not accompany her application with evidence that she had undertaken one of the specified English language tests in the 3 years before making her application and achieved at least the minimum score specified. The Tribunal noted that it has no discretion to waive the requirement that, as primary applicant, Mrs Daniels must demonstrate that she meets cl.485.212 of Schedule 2 to the Regulations and the specifications set out in IMMI 15/062. It explained that while she was able to achieve at least the specified scores in the test undertaken in 29 July 2017, the test was not taken in the period specified.

15. Having regard to the above evidence, the Tribunal is not satisfied that Mrs Daniels’ Subclass 485 visa application was accompanied by evidence that she meets cl.485.212(a) of Schedule 2 to the Regulations.

16. On the basis of the above, the primary 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 must be affirmed.

    DECISION

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

    Katie Malyon
    Member

    Attachment – extract from the Migration Regulations 1994
    
    

    Schedule 2
    Subclass 485 – Temporary Graduate

    …

    485.212  The application was accompanied by evidence that:

    (a) the applicant:

    (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

    (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

    (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph .

    
    …

    oOOo