Domey (Migration)

[2019] AATA 2318

Domey (Migration) [2019] AATA 2318 (15 March 2019)

DECISION RECORD

DIVISION:  Migration & Refugee Division

APPLICANTS:  Mr George Efovi Domey

Mrs Jemima Domey

Miss Lydia Edinam Domey

Master Enyonam Ama Domey

CASE NUMBER:  1726595

DIBP REFERENCE(S):  BCC2017/2888898

MEMBER:  K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 March 2019 at 9:55 am (QLD time)

DATE OF WRITTEN RECORD:                27 March 2019

PLACE OF DECISION:  Brisbane

DECISION:  The Tribunal affirms the decisions not to grant the

applicants Skilled (Provisional) (Class VC) visas.

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language test – passed test after visa application was submitted – humanitarian grounds – no power to waive temporal limitations – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Immigration on 9 October 2017 to refuse to grant the applicants Skilled (Provisional) (Class VC) Subclass 485 visas under the Migration Act 1958 (‘the Act’).

2. At the hearing on 15 March 2019 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. The first named applicant is Mr George Efovi Domey. He is the primary visa applicant. The second, third and fourth named applicants are family members who are secondary visa applicants. The Tribunal reference is 1726595.

4. The applicants applied for the visas on 12 August 2017. 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.

5. The delegate refused to grant the visas on 9 October 2017 on the basis that the first named applicant (‘the applicant’) did not satisfy clause 485.212 of Schedule 2 to the Regulations because, in their view, at the time the visa application was made, the applicant did not demonstrate the required English language proficiency in accordance with clause 485.212.

6. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. He confirmed that there were no other witnesses providing evidence in his case.

7. The Tribunal received documents from the applicant at the hearing including letters from his church and also from the Queensland Theological College. The Tribunal has also had regard to the information contained in its file and the Departmental file which includes information regarding English language test results. All material submitted by the applicant has been duly considered by the Tribunal.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the applicant satisfies clause 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 (see clause 485.212(a)); or

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

9. The relevant instrument specifying the 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, clause 485.212(b) is not met. Therefore, the applicant must meet clause 485.212(a) in order for his review to be successful.

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1. During the review hearing, the applicant was invited to provide evidence in support of his application for review. When asked by the Tribunal if he had undertaken an English language test within the three years before the day on which the Subclass 485 visa application was made, the applicant advised that yes, he had taken an English language test but he did not pass it. By the time he passed the English language test he had already submitted his Subclass 485 visa application.

2. The Tribunal raised with the applicant that the IELTS English language test he undertook on 6 May 2017, which was before the Tribunal in documentary evidence, included an overall score of 5.5 which is below the specified score. The Tribunal further raised that the IELTS English language test he undertook on 16 September 2017, which was also before the Tribunal in documentary evidence, was not undertaken within the three years before the day on which the Subclass 485 visa application was made. The Tribunal raised that this might tend to suggest that the applicant did not meet the requirements for the visa, inviting his comment.

3. The applicant responded that he is not here to justify his case and he indicated that he knows it falls short of the law. However, he asked the Tribunal to view his case through the perspective of humanitarian grounds. When asked by the Tribunal what the humanitarian grounds were, he advised that his home town in Ghana is not a safe place due to a situation with two rival factions of chieftains. He maintained that it was not safe for him to return to his home town in Ghana having lived abroad. He also outlined that that there were problems with the teaching system in that country and that if he goes home he will have nothing.

4. The applicant advised the Tribunal that he supports his two children in Australia and also the five children of his brother who live offshore. He told the Tribunal that the future aspirations of his own children, and those of his brothers, will come to an end if they are required to depart Australia. The applicant also advised the Tribunal that he helped establish his church at Darra State High School and the Tribunal has read and duly considered letters regarding the Church of Pentecost. The applicant told the Tribunal that he has his own aspiration to become a full time minister.

5. The Tribunal invited the applicant to provide further oral evidence about the decision to refuse to grant him and his family members the Subclass 485 visa and he advised the Tribunal that he asked it to consider the humanitarian grounds of his case and the circumstances of his family including that they rely upon him for support. The Tribunal drew to the applicant’s attention that it must apply the law to the particular facts of the case. The applicant confirmed to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing.

6. The Tribunal notes that the applicant applied for the Subclass 485 visa on 12 August 2017 indicating he had undertaken the required English language test in that visa application, specifically an IELTS English language test undertaken on 6 May 2017. The applicant also provided a copy of results from an IELTS English language test undertaken on 16 September 2017 where he received an overall score of 6. The Tribunal notes that the Departmental delegate’s visa refusal decision, a copy of which was provided to it by the applicant, indicates he achieved an overall score of 5.5 in the IELTS English language test undertaken on 6 May 2017. The Tribunal finds that this result does not achieve the specified score in accordance with instrument IMMI15/062.

7. The IELTS English language test undertaken by the applicant on 16 September 2017 does achieve the specified score in accordance with instrument IMMI 15/062. However, the applicant’s latest successful English language test was not undertaken by the applicant within the three years before the day on which the Subclass 485 visa application was made. There is, therefore, no evidence before the Tribunal suggesting that the applicant undertook

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a specified English language test within the three years before the day on which the Subclass 485 visa application was made and achieved a specified score in accordance with instrument IMMI 15/062.

1. The Tribunal notes that the applicant conceded in his oral evidence that he did not successfully undertake the necessary English language test within the specified period, rather, he asked for the Tribunal to consider the humanitarian grounds raised by him as a basis for granting him the visa. The Tribunal notes that it must apply the law to the facts of this matter in an impartial and dispassionate fashion even if the result is upsetting to the applicant. The Tribunal has no power to waive the temporal limitations specified at Item 4 of instrument IMMI15/062.

2. Having carefully considered the evidence, the Tribunal finds that at the time the Subclass 485 visa application was made it was not accompanied by evidence that the applicant undertook a specified English language test within the three years before the day on which the Subclass 485 visa application was made and achieved a specified score in accordance with instrument IMMI 15/062.

3. Therefore, the Tribunal is not satisfied that the application was accompanied by evidence that meets clause 485.212(a). It follows that the applicant 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.

4. The second, third and fourth named applicants do not satisfy clause 485.311 given that the applicant does not satisfy the criteria for the visa.

   DECISION

5. The Tribunal, constituted by Member Chapman, affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

   K. Chapman
   Member

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