Feraud (Migration)

[2022] AATA 1391

Feraud (Migration) [2022] AATA 1391 (6 May 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Mathieu Feraud

CASE NUMBER:        2006579

HOME AFFAIRS REFERENCE(S):         BCC2019/881058

MEMBER:Tim Connellan

DATE:6 May 2022

PLACE OF DECISION:  Melbourne

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

Statement made on 06 May 2022 at 6:46pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – post-study work stream – English language proficiency – evidence of undertaking specified test not provided with visa application – incorrect information given by department – articulate and truthful witness – test result provided to tribunal post-hearing – extensive study and work in English-speaking countries – involvement in internationally significant research – referred for ministerial consideration – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(i)

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 Home Affairs to refuse to grant the applicant Mr Mathieu Feraud a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 14 January 2020. 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 (Cth) (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 19 March 2020 because the applicant did not have the required English language proficiency.

4. Mr Feraud appeared before the Tribunal on 10 July 2021 to give evidence and present arguments.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed with a recommendation for Ministerial intervention pursuant to s.351..

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Feraud 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)).

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 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).

8. Reading from the primary decision, it states: On 14 January 2020 the applicant lodged an online Temporary Graduate (Post Study Work Stream) (Class VC) (Subclass 485) visa application.

9. The applicant declared ‘No’ to the following declaration:

   Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?

10. It further states:

    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 test within the last 36 months that demonstrates you have at least competent English.

11. On 17 March 2020, the application was assessed and Departmental systems verified the applicant did not provide evidence of having successfully completed an acceptable English test within the 3 years immediately before the day on which this application was made.

12. Therefore, the applicant does not satisfy Regulation 485.212(a)(i).

13. In addition, the applicant did not provide evidence he held a passport of a type specified by the Minister. Therefore, the applicant does not satisfy regulation 485.212(b).

14. Based on all the information listed, the delegate found Mr Feraud did not meet the requirements of Regulation 485.212.

    The Hearing

15. Mr Feraud presented as an articulate and truthful witness whose communication in English was excellent.

16. He explained that he had been living and working in English speaking countries for over 10 years.

17. Having completed his Master’s degree in 2019 he is currently working as a research scientist and lecturer at the University of Queensland. He provided the results of English tests conducted post hearing which showed he had an excellent level of English in all bands.

18. Mr Feraud claims he failed to provide the required English test as he had been misled by the Department.

19. He provided a range of evidence including a recording of a phone call he had made to the Department on 14^th January 2020 prior to lodging his application. In that call he accurately details his visa application and subclass (485) and asks specifically whether he needs to provide further evidence of his English proficiency.

20. While the staff member initially provides the correct information that evidence of the results of a test taken in the last 3 years is a mandatory requirement, when he asks further questions, he was provided with answers that were not per the regulations and the Tribunal accepts that those answers could have provided confusion and/or the belief that it was not necessary to provide the required information at the time of lodging the application.

21. Mr Feraud provided a number of character references including one from the Professor of Environmental Toxicology at the University of Queensland who stated that Mr Feraud was and had been an integral member of the Research Centre at the University since 2018 involved in a project to identify emerging chemical threats and while based in Australia, the project involved a number of international partners and had worldwide ramifications. Professor Thomas stated it would be a significant loss to Australia if Mr Feraud was not permitted to stay in Australia.

22. Having considered the evidence provided, the Tribunal is satisfied that the application was not accompanied by evidence that meets cl 485.212 (a).

23. On the basis of the above, Mr Feraud 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, however given the circumstances, the Tribunal requests this matter be referred to the Minister for Ministerial intervention pursuant to s.451.

    Request for Ministerial Intervention under s.351

24. The Tribunal believes this case involves unique or exceptional circumstances that merit Ministerial intervention in the economic and scientific benefit that would result from allowing Mr Feraud to continue his work in Australia.

    Additionally, the Tribunal is satisfied that information provided to Mr Feraud by a member of staff contributed to the fact he failed to provide the required information.

    DECISION

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

    Tim Connellan
    Member