Domaniuk (Migration)

[2020] AATA 4929

Domaniuk (Migration) [2020] AATA 4929 (9 October 2020)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANT:  Mr Artem Domaniuk

CASE NUMBER:  1905370

DIBP REFERENCE(S):  BCC2018/5768006

MEMBER:  Susan Trotter

DATE:  9 October 2020

PLACE OF DECISION:  Brisbane

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

Statement made on 9 October 2020 at 5:42pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – application not accompanied by required evidence – no discretion – request for ministerial intervention declined – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), 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).

1. At the hearing on 9 October 2020, the Tribunal made an oral decision. The following is the written reasons for that decision.

STATEMENT OF DECISION AND REASONS

1. The   applicant,   a   now   26-year-old   citizen   of   Russia   applied   for   the   visa   on    21 December 2018.

1. Visa Class VC contains Subclass 485. 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.

1. The delegate refused the visa on 15 February 2019 on the basis that the applicant did not meet the requirements of cl.485.212 relating to English language requirements.

1. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 7 March 2019. A copy of the delegate’s decision was provided with the application.

1. The applicant appeared before the Tribunal on 9 October 2020 to give evidence and present arguments. The applicant was represented by their registered migration agent who provided comprehensive written submissions.

1. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

ISSUES

1. 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).

1. One criterion for the grant of a Subclass 485 visa is set out in cl.485.212, which provides as follows:

   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.

1. The relevant instrument specifying language tests, relevant periods, scores and passports is IMMI 15/062, which includes as follows:

(a)  The specified tests are an International English Language Test System (IELTS), a Test of English as a Foreign Language internet-based Test (TOEFL iBT), a Pearson Test of English Academic (PTE Academic), a Cambridge English: Advanced (CAE) test or an Occupational English Test (OET). (paragraph 1 of IMMI 15/062).

(b)  The language test must have been undertaken within the three years before the day on which the application was made. (paragraph 4 of IMMI 15/062).

(c)   The minimum scores as set out in paragraph 3 of IMMI 15/062.

(d)  The passports specified are those issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. (paragraph 6 of IMMI 15/062).

1. It follows that the issues to be determined by the Tribunal are as follows:

(a)  Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 21 December 2018 and achieved the applicable score specified in IMMI 15/062?; or

(b)  Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

CONSIDERATION OF CLAIMS AND EVIDENCE

Issue 1 – Was the visa application accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before     21 December 2018 and achieved the applicable score specified in IMMI 15/062?

1. The applicant responded “no” to a question posed in the visa application as to whether he held a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland or had undertaken an English test within the last 36 months demonstrating that he met the English language requirement.

1. The written submissions provided to the Tribunal confirm that the applicant had not undertaken a specified English test in the 36 months prior to making his Subclass 485 visa application (on 21 December 2018), that his most recent IELTS test was undertaken on 11 February 2019 with prior IELTS tests undertaken on 13 August 2011 and 24 September 2011.

1. The Tribunal has taken into account the evidence before it and is satisfied that the applicant has completed language tests as specified such that cl.485.212(a)(i) is met.

1. However, the Tribunal is not satisfied that the tests were undertaken within the three year period before the date of the visa application on 21 December 2018. The visa application

was not accompanied by evidence that the applicant had undertaken a language test specified in IMMI 15/062 within the three years before 21 December 2018 and achieved the applicable score specified in IMMI 15/062.

1. The applicant therefore does not satisfy cl.485.212(a)(ii).

1. Consequently, the applicant does not satisfy cl.485.212(a) as a whole.

Issue 2 – Was the visa application accompanied by evidence that the applicant holds a passport issued by the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland?

1. The applicant stated in the visa application that he holds a passport from the Russian Federation.

1. The Tribunal is therefore not satisfied that the application was accompanied by evidence that meets cl.485.212(b). Clause 485.212(b) is not met.

Conclusion

1. 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. Notably, it is acknowledged in the written submissions provided to the Tribunal, that this must be the decision of the Tribunal.

MINISTERIAL INTERVENTION

1. The Tribunal is bound to apply the law as it is written. There is no discretion for the Tribunal to waive the need to meet cl.485.212.

1. The Tribunal notes that the Minister has an entirely discretionary power pursuant to s.351 of the Act to intervene in a case where the outcome of a review application has been unsuccessful. The Minister's guidelines for intervention are set out on the Department's website: intervention (the Guidelines).

1. The Tribunal has considered the applicant’s request for the Tribunal to recommend that the Minister intervene. In particular, the Tribunal acknowledges the following matters raised by the applicant at hearing and canvassed in the written submissions provided on behalf of the applicant:

(a)  The applicant has been in Australia since 2012 and has assimilated to the way of life in Australia and is very settled on plans and goals towards remaining in Australia.

(b)  The applicant graduated from the University of Queensland in 2018 with a Bachelor of Health Sciences with a major in Public Health.

(c)   The applicant presently works as a Through-Hole Assistant for an Australian electronics manufacturer.

(d)  The applicant has been applying for health-related positions since he graduated, but to date has been unsuccessful, a situation the applicant considers is due to his visa status.

(e)  The applicant’s understanding was that he could upload the necessary documents (such as a skills assessment and English test results) as he obtained them, uploading them either on his own initiative or providing them in response to a request from the Department (as he had done with previous student visa applications), such that the applicant was shocked to receive the refusal decision without having received any request from the Department for documents.

(f)    The online application process allowed the applicant to answer ‘no’ to the English language question and yet proceed to lodge the application and pay the application fee without any warning that it was a mandatory requirement (at the time of application).

(g)  As demonstrated by the IELTS test results undertaken by the applicant, he has a high level of English proficiency.

(h)  The applicant lives with his partner, an Australian citizen, who is the owner of a house. The applicant assists in paying the mortgage for the house. His partner has previously completed a Bachelor of Engineering (Honours) from the University of Queensland and is now completing a Master of Business Administration.

(i)    The applicant’s current employer has confirmed his current employment and his very advanced English language level.

(j)    Given the online application process did not clearly alert applicant to the consequence of not having undertaken a relevant English test prior to making the application, but allowed continuation of the visa application despite answering ‘no’ to the relevant question, it is submitted that the application of the relevant legislation leads to an unfair or unreasonable result such that the matter should be referred to the Minister.

(k)   If the visa is declined, the applicant would have to return to Russia. This would be very difficult for him as he has no friends left there and he really does not know what is going on in Russia. He just knows that coronavirus is harsh there and people are not following guidelines in relation to coronavirus. He is very concerned about returning there.

(l)    The Certificate of Friendship the applicant has provided from the Mayor of Brisbane was given to him in recognition of his participation in cultural performances.

1. The Tribunal recognises the applicant’s long-term association with Australia and is satisfied that the applicant’s circumstances do not fall within the listed circumstances in the Guidelines of when it is inappropriate to consider Ministerial intervention.

1. The legislative intention of cl.485.212 is clear as regards the criterion in issue and the Tribunal cannot therefore be satisfied that these are circumstances that were not anticipated by the legislation. It is not uncommon that Subclass 485 applicants do meet the strict technical requirements for the visa in circumstances where in substance they may meet the criterion. The Tribunal acknowledges all of the matters raised by the applicant and acknowledges the importance of this visa application to the applicant. However, the Tribunal has decided to not refer the matter for Ministerial intervention.

1. The Tribunal notes that the applicant can still make a direct request to the Minister under

   s.351 of the Act.

DECISION

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

Susan Trotter Member