Haroon (Migration)

[2019] AATA 4508

Haroon (Migration) [2019] AATA 4508 (15 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Qasim Haroon

CASE NUMBER:  1802988

DIBP REFERENCE(S):  BCC2017/4985734

MEMBER:K. Chapman

DATE AND TIME OF

ORAL DECISION AND REASONS:          15 March 2019 at 3:15 pm (QLD time)

DATE OF WRITTEN RECORD:                29 July 2019

PLACE OF DECISION:  Brisbane

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

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirements not met – timeframe requirements not met – previous IELTS test not undertaken within the three years before day of visa application – Tribunal has no power to waive limitation – decision under review affirmed

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

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 24 January 2018 to refuse to grant the applicant a Skilled (Provisional) (Class VC) Subclass 485 visa 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 applicant is Mr Qasim Haroon. The Tribunal reference is 1802988. 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 section 65 of the Migration Act 1958, otherwise known as ‘the Act’.

4. The applicant applied for the visa on 28 December 2017. The 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.

5. The delegate refused to grant the visa on 24 January 2018 because, in their view, the applicant did not demonstrate the required English language proficiency in accordance with cl.485.212.

6. The applicant appeared before the Tribunal on 15 March 2019 to give evidence and present arguments. The applicant confirmed he was the only person providing evidence to the Tribunal at the review hearing.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. 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.

9. 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 he had not.

10. The Tribunal raised with the applicant that he answered ‘no’ to the following question in the visa application: ‘Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland to demonstrate that 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?’ The Tribunal indicated that the applicant’s answer to that question might tend to suggest that he does not meet the requirements for the visa, inviting his comment.

11. The applicant explained that the reason he applied to the Tribunal was because he thought special circumstances could be taken into account in the review. He explained that he completed his Degree studies on 17 November 2017 with his Student visa expiring on 31 December 2017.

12. At that time he was not aware of the three year situation with respect to the currency of the English language test. When lodging his Subclass 485 application he found out about the 36 month period with respect to the validity of the English language test and realised that an earlier test he had undertaken was out of time. He explained to the Tribunal that he had to lodge his Subclass 485 visa application prior to the expiry of his Student visa. Given the compressed timeframes in conjunction with the holiday period, the applicant was not able to book an IELTS test prior to receiving the visa refusal decision.

13. The Tribunal raised with the applicant that the IELTS test that he undertook on 7 June 2014 included an overall score of 6.5. However, it was not undertaken within the three years before the day on which the Subclass 485 visa application was made which might tend to suggest that he did not meet the requirements for the visa, inviting his comment.

14. The applicant responded that he understood that to be the case, however he requested that his circumstances be considered. He requested that he be able to remove problems with his visa history which might be caused by a visa refusal. The applicant explained that he does not wish to remain living in Australia, however he is considering options with respect to moving to Canada or the United States of America and he does not want an Australian visa refusal on his immigration record.

15. The Tribunal notes that it discussed with the applicant that the test he undertook on 7 June 2014 was out of date and the applicant accepted that to be the case. The Tribunal invited the applicant to provide further evidence about the decision to refuse to grant him the Subclass 485 visa. He explained his biggest mistake was not being aware of the exact 36 month time period with regard to the validity of the English language test. He told the Tribunal that he got his calculation wrong with regard to the validity of the test that he undertook on 7 June in 2014.

16. The applicant advised the Tribunal that by the time he realised his mistake it was too late. He confirmed to the Tribunal that he had no further evidence to provide prior to the conclusion of the review hearing.

17. The Tribunal has very carefully considered all of the evidence in this case. The Tribunal notes that the applicant applied for the Subclass 485 visa on 28 December 2017 indicating he had not undertaken the required English language test in that visa application. 

18. The applicant also provided to the Department a copy of results for an IELTS English language test undertaken on 7 June 2014 where he received an overall score of 6.5. Whilst that test result achieves a score specified in instrument IMMI15/062, it was not undertaken within the three years before the day on which the Subclass 485 visa application was made.

19. There is no evidence before the Tribunal suggesting 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 the specified score in accordance with instrument IMMI15/062. 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.

20. The Tribunal is satisfied that the applicant provided honest evidence during the review and the Tribunal notes this for the record.

21. The Tribunal notes, however, 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. 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 the specified score in accordance with instrument IMMI15/0602.

22. 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.

    DECISION

23. The Tribunal, constituted by Member Chapman, affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

    K. Chapman
    Member