Khanal (Migration) - [2025] ARTA 104

Khanal (Migration) [2025] ARTA 104 (17 January 2025)
DECISION AND
REASONS FOR DECISION
Applicants:Mrs Rubina Khanal
Mr Saroj Adhikari
Respondent:  Minister for Immigration and Multicultural Affairs
Tribunal Number:  2217169

Tribunal:General Member A McMurran
Place:Sydney
Date: 17 January 2025
Decision:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.212 of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction for the second named applicant.

Statement made on 17 January 2025 at 5:59pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – difficulty securing date for specified test – department’s policy during COVID restrictions – test successfully undertaken after application made – secondary applicant husband in home country – no jurisdiction – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 338(2)
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(1)(a)
CASES
Joseph (Migration) [2018] AATA 2982
Puthenpurackal Antony (Migration) [2022] AATA 3483
Sharma (Migration) [2023] AATA 1465
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged 23 November 2022 with the Administrative Appeals Tribunal (AAT) for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
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.
The applicant, Ms Rubina Khanal, and her spouse the secondary dependent applicant, Mr Saroj Adhikari, applied for the visas on 7 April 2022.
The delegate refused the visas on 16 November 2022 because the first named applicant (the applicant) had not submitted evidence that she had met the criteria in cl 485.212 for the English language proficiency requirement. The secondary applicant failed because the primary applicant was unsuccessful.
On 14 October 2024, the AAT became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), applications for review to the AAT that were not finalised before 14 October 2024 are taken to be an application for review to the Tribunal. This application falls into that category.
The Transitional Act gives the Tribunal the authority to continue and finalise any aspect of the review not already completed by the AAT. This decision and statement of reasons is made by the Tribunal in place of the AAT.
The applicant appeared in person before the Tribunal on Friday 17 January 2025 to give evidence and present arguments. The second named applicant did not appear. An interpreter was not requested. No issue was detected nor raised concerning interpretation in the English language. The applicant indicated she was ready to proceed, with the support of her migration agent.
The applicants were represented in relation to the review by their migration agent who appeared with the applicant for the hearing and made submissions.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The Tribunal has available information provided from the Department’s file, the AAT and Tribunal files, written submissions from the applicant and the oral evidence from the hearing. The Tribunal also considers Department Policy and relevant court authorities.
The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) 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(1)(a)); or
·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI15/062. It requires that the applicant must demonstrate that they have achieved the required level of English language proficiency by providing evidence, on lodgement of their visa application, that they have achieved a minimum score.[1]
[1] See Explanatory Statement F2015L00564 [at par 3]
The relevant English language test must have been undertaken and the scores achieved, within the 3 years before the day on which the application was made The required score for a PTE test is a minimum overall score of 50, with a score of 36 for each of the components of Listening, Reading, Speaking and Writing.
Clause 485.212(1.) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2). There is no evidence before the Tribunal that the applicant meets cl 485.232 or 485.233: cl 485.212(2) or cl 485.212(1)(b). As such, the applicant must meet cl 485.212(1)(a) and achieve the test score as specified by the instrument.
The evidence before the Tribunal reveals there is no factual dispute that no evidence of a successful English language test as provided for in the instrument was submitted by the applicant with the visa applications. The applicant has conceded and confirmed at the hearing that she had not completed a specified English language test taken within 3 years before the day on which her application was made.
The applicant gave evidence that her visa was due to expire on 14 April 2022 and she was required to lodge her new visa application before expiry. The applicant has provided evidence that she had booked a PTE test in the name of “Khanal” for 15 March 2022, the month before lodging her visa application. Unfortunately, PTE was unable to confirm her identity as “Khanal” on the day of the test when she presented, refused to allow her to sit the test as booked, and compelled her to re-book for a later date.
She said dates were difficult to organise because PTE were still proceeding on the basis of their COVID-19 protocol, and she was unable to rebook the test until 14 April 2022. The test was confirmed on or about 7 April 2022, and before the applicant had lodged the visa application.
The applicant’s representative had previously written to the Department’s 485 visa team on 9 December 2021. The representative asked the Department for confirmation of its position regarding the English language testing at the time of application for 485 visa applicants based in New South Wales. The representative asked, “Can we lodge a 485 visa with the evidence of English and provide the result at a later stage?” This was to reflect Department policy at the time during the pandemic that in some circumstances where bookings were hard to come by, that it was prepared to accept late lodgement of results to accompany applications, and subject to the proviso of a test having been booked beforehand and provision of that information.
The Department responded on 9 January 2022 stating: “We are aware that applicants have been affected by the recent lockdowns. Therefore please proceed with the application and attach this email, along with evidence of the new test booking and result once they become available.”
The applicant believed she was compliant because she had booked a language test for 15 March 2022 which did not proceed for reasons beyond her control, but was able to book a further test to be completed one week after lodgement of her application on 7 April 2022, and about which she had informed the Department.
On 7 April 2022, the applicant lodged her visa application with evidence from PTE of her booking for the test on Thursday, 14 April 2022 and the Department’s email.
On 14 April 2022 the applicant successfully completed her PTE test at her first sitting, obtaining an overall score of 61, with scores of 66 for listening, 56 for reading, 69 for speaking, and 59 for writing. The Tribunal finds that the applicant has satisfied the English language test requirement on that date, very shortly after lodgement of her visa application. This was also in accordance with the information the applicant had provided to the Department when lodging the visa application.
The representative provided the following further written submissions on 17 January 2025:
“The primary issue leading to refusal is the absence of an English test result at the time of lodgment. However, it is critical to note:
1. Flexibility in Subclass 485 Visa Guidelines:
  The guidelines for Subclass 485 visas provide flexibility regarding the submission of English test results. No specific deadline was stipulated for post-lodgment submission, and the PTE test booking provided a reasonable basis for proceeding with the application.
2. Proactive Compliance:
  Our client made genuine efforts to fulfill this requirement. The administrative issue at the test center, which resulted in the delay, was entirely beyond her control. Once resolved, she achieved the required English proficiency score on 14 April 2022, well before the decision date.
3. Schedule 1 and Procedural Fairness:
  The Schedule 1 criteria, when interpreted alongside the Department’s communication, suggest that the requirement for English test results could be satisfied after lodgment, provided genuine attempts to comply are demonstrated. This flexibility should have been extended to our client given the evidence of her proactive engagement and compliance.”
The Department appears not to have received details of the successful test result from the applicant, however noting that the Department had not specified any time by which notification was required. Before the applicant could do so, the Department made its decision for the visa refusal.
The applicant’s representative has submitted several AAT decisions of a comparable nature, and where details of a successful English language test had not been provided at the time of application. In those decisions[2], each Tribunal found the applicant met the language testing criteria for the visa, despite late, or no lodgement, before the decision. The Tribunal is not bound by those decisions, but wherever possible attempts to ensure consistency in decision-making in comparable fact situations.
[2] Puthenpurackal Antony (Migration) [2022] AATA 3483; Sharma (Migration) [2023] AATA 1465; and Joseph (Migration) [2018] AATA 2982.
The Tribunal has considered all the applicant’s written submissions and listened carefully to her evidence. The Tribunal has no ability to waive the formal requirement to be met, but similarly can acknowledge the application of processing policy at the time which the Department conceded was appropriate and applied, owing to the exceptional circumstances occasioned by pandemic-inspired lockdowns.
Given the reasonable latitude allowed by the Department at the time for “accompanying” evidence during processing applications, which was entirely appropriate, and given the circumstances as outlined by the applicant in her case which was beyond her control, the Tribunal finds that there is no reason not to apply that flexible policy to the applicant, as was done by the Department for others. The Tribunal finds therefore that the applicant has met the English language testing requirement and meets cl 485.212(1)(a).
The secondary applicant
The applicant has given evidence that the secondary applicant remains offshore in Nepal and has never entered Australia.
The secondary applicant does not meet the requirement in accordance with Part 5 Reviewable Decisions in the legislation for the Tribunal to exercise jurisdiction for his review, as the visa applicant is not in the migration zone.[3]
[3] S 338(2) of the Act
The Tribunal does not have jurisdiction in respect of the secondary applicant.
Conclusion
On the basis of the above, the applicant meets the requirements of cl 485.212 of Schedule 2 to the Regulations.
The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.
DECISION
The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
· cl 485.212 of Schedule 2 to the Regulations.
The Tribunal does not have jurisdiction for the second named applicant.
Date(s) of hearing: 17 January 2025
Representative for the Applicant: Mr Raju Kc (MARN: 1799073)