Gautam (Migration)

[2019] AATA 534

Gautam (Migration) [2019] AATA 534 (18 February 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Ananya Gautam

CASE NUMBER:  1830893

DIBP REFERENCE(S):  BCC2018/3118538

MEMBER:Alan McMurran

DATE:18 February 2019

PLACE OF DECISION:  Sydney

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

Statement made on 18 February 2019 at 11:48am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language test – within three years prior to visa lodgement – no discretion – 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).

2. The applicant applied for the visa on 18 August 2018. 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.)

3. 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.

4. The delegate refused the visa on 2 October 2018 because the applicant did not have the required English language proficiency, demonstrated by successful completion of an English language test undertaken within three years prior to the day of lodgement.

   Background

5. The applicant is a 35-year-old citizen of India. The applicant was granted a student visa and arrived in Australia on 15 July 2015. The applicant completed a Master of Information and Communication Technology Advanced (ICT Strategic Planning) at the University of Wollongong on 6 August 2018.

6. On 18 August 2018, the applicant completed an application form for a temporary graduate or skilled regional visa. Under the heading ‘Applicant language ability’ the applicant answered “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).

7. The application also asks the question “Have you undertaken an English test within the last 36 months?” The applicant answered “yes” to the question, naming an IELTS test conducted 6 August 2018. The applicant gave a test reference number 141N038247GAUA100A, noting the test was undertaken in India.

8. A check of the Department’s file[1] reveals that the applicant submitted a number of documents with the application. The documents included passport, Federal police check, University of Wollongong certification and academic transcript, and an IELTS test report dated 27 March 2015. The test report bears the same test reference number set out above and confirms it was taken in India.

   [1] BCC 2018/3118538

9. The applicant also made a written submission to the Tribunal by statement dated 22 October 2018 in support of this application for review.

10. The Tribunal sent a letter on 22 January 2019 to the applicant with an invitation to appear. The letter contained information for the applicant including details of the requirements for the English language assessment contained in cl. 485.212 of the Regulations.

11. The letter also set out a table showing the specified tests and specified scores for those tests necessary to meet the requirement. The Tribunal letter included the paragraph:

    “A preliminary review of your file suggests that your visa application was not accompanied by this evidence. If we find that your visa application was not accompanied by this evidence, we must affirm the decision that is under review.”

12. The Tribunal letter invited the applicant to provide information within seven days of receipt of the letter. The applicant appeared in a multi-application hearing list before the Tribunal on 14 February 2019 to give evidence and present arguments.

13. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

14. 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)).

15. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 which commenced on 16 April 2015.

16. 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).

17. At the hearing, the Tribunal asked the applicant about the date of his IELTS English language test. The applicant said that he had lodged with the application the IELTS test report dated 27 March 2015, bearing the test reference number referred to above. The Tribunal asked the applicant why he had answered “yes” to the question in the application form and given a date of 6 August 2018. The applicant said in reply this was not correct and that he had only conducted the one test in India as indicated on the test report on 27 March 2015. He relied also on the explanation he provided with his application[2] that he was “advised” he had “already cleared IELTS”.

    [2] DIBP file at f 48

18. In fairness to the applicant, by way of explanation, he said he had rung the Department of Immigration several times and had spoken to someone. The applicant said he was having difficulties completing the form online and was concerned if he answered “no”, that he would not be able to “move on” in the document completion process. He explained that he thought he would be unable to complete the form and said he was given an assurance by the person with whom he spoke that he could upload his old IELTS test so he would be able to “move on” in the document. The applicant then answered “yes” to the question and gave the date of the test as the date of completion of his degree course (6 August 2018).

19. At the hearing, the applicant confirmed this date was not correct and that the test date was in fact 27 March 2015 in India. He said he did not think it was necessary for him to do a further English test as he had studied his degree in English and thought that would be sufficient evidence of his language qualification. He said he believed this was confirmed by the person he spoke to from the Department who said he could rely on the previously completed IELTS test in India on 27 March 2015. The applicant said he did not think it necessary to obtain any independent advice to check his understanding.

20. The explanation given at the hearing is corroborated in the applicant’s statement made 22 October 2018[3]. The applicant says in his submission:

    “Regarding my English language eligibility, as my IELTS validity date has expired in March 2018, I had made a number of calls to immigration Department between middle of July 2018 to first week of August, at least five times on various dates. I was repeatedly advised by the officer that since you have done IELTS already and you have been in Australia for last three years and also since your post-graduation course was in English language only, you don’t need to clear your IELTS again. Instead, I was advised to submit a letter from Wollongong University to this effect that I had completed my post-graduation course and the medium of instructions was English only. As per the advice, I obtained a suitable letter from the University.”

    [3] T file ff7-8.

21. On the Department’s file,[4] the University of Wollongong produced a letter stating “English is the language of instruction used by the University of Wollongong”. The applicant further says in his statement that:

    “It may please be noted that on account of assurance given to me by the officer of the Immigration Department, I did not appear for the IELTS exam again as I was assured that I comply with the requirement of the visa application for language proficiency.”

    [4] DIBP file at f 25

22. At the hearing, the applicant submitted that he had been misguided by the Department about submitting an IELTS test. Other than the applicant’s statements however there is no probative information or evidence which might confirm exactly what information the applicant was given or provided. The applicant said that if he had known about the significance of the timing issue, he would not have spent the money on the application, then the Tribunal review or another IELTS test, as it would have been fruitless.

23. Having considered the available information and the applicant’s submissions the tribunal is satisfied that:

    ·the applicant lodged with his application an IELTS test report completed 27 March 2015; the applicant obtained an overall band score of 6.5;

    ·the applicant was required to complete an English language test in the 36 month period between 18 August 2015 and 18 August 2018;

    ·the applicant answered the question in the application form incorrectly, and he should have said “no”, having not undertaken an English language test in the preceding 36 months;

    ·the applicant had not undertaken an IELTS test on 6 August 2018.

24. Paragraph 3 of IMMI 15/062 specifies the minimum overall band score for an IELTS English test of 6. The Tribunal is satisfied that the applicant’s IELTS test results exceeded the required score.

25. IMMI 15/062 however specifies at paragraph 4 as follows:

    “SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:” (highlighting added)

26. The Tribunal acknowledges the applicant’s explanation that he checked with the Department and received telephone advice (several times) which he understood meant that he was not required to sit an English test before lodging his visa. It is also acknowledged that the earlier test conducted exceeded the specified score and demonstrated a high level of English proficiency, as confirmed by the letter from the University of Wollongong and completion of the Master’s degree course delivered in the English language. The Tribunal also acknowledges that the applicant has said he has completed a further IELTS English test in February 2019, which unfortunately is after the day on which the application has been made. Evidence of that test outcome was not produced.

27. The Tribunal is required to be satisfied that the applicant meets the requirements of the regulation cl. 485.212.The Tribunal finds that on the evidence before it, the IELTS test conducted by the applicant on 27 March 2015 was undertaken more than three years before the date on which the application was made (18 August 2018), and therefore does not meet the requirement. The Tribunal is therefore not satisfied that the application was accompanied by evidence that meets cl.485.212 (a).

28. The Tribunal is satisfied that notwithstanding the applicant met the requisite score for the IELTS test undertaken, the test was not undertaken within the three years before the day on which the application was made, and the Tribunal is bound by the temporal limitation in the Instrument, and has no discretion to alter the limitation.

29. 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.

30. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212 (a). 

31. 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

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

    Alan McMurran
    Member