Kibuu (Migration) - [2021] AATA 1835

Kibuu (Migration) [2021] AATA 1835 (19 May 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Ms Susan Wanjiru Kibuu
Master Augastine Mwangi Waweru
Miss Ruth Wanjiku Waweru
CASE NUMBER:  1932362
HOME AFFAIRS REFERENCE(S):          BCC2019/3985876
MEMBER:Simone Burford
DATE:19 May 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.
Statement made on 19 May 2021 at 3:11pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language ability – no specified test taken in 3 years before application made – subsequent test results provided to department, one of which achieved specified score – no discretion to waive requirement – members of family unit – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 55, 65
Migration Regulations 1994 (Cth), r 1.15C, Schedule 2, cl 485.212(a)
CASES
Baig v MIBP [2018] FCCA 2986
Berenguel v Minister for Immigration and Citizenship [2010] HCA 8
Farook v MIBP [2014] FCA 1017
Kaur v Minister for Immigration and Border Protection [2015] FCA 584
Kumar v MIBP [2014] FCA 1336
Milanes v Minister for Immigration and Border Protection [2015] FCA 1105
Sandhu v MIBP [2013] FCCA 2285
Singh v MIBP [2015] FCCA 1533
Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application 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).
The first named applicant (the applicant) is a 41-year-old citizen of Kenya. The second named applicant (the second applicant) is her son. The third named applicant (the third applicant) is her daughter. The second and third applicants (the dependent applicants) applied for the visas as members of the same family unit as the applicant.
The applicants applied for the visas on 12 August 2019. 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 delegate refused the visas on 1 November 2019 because the applicant did not meet the English language ability requirement prescribed in the Regulations. The applicants provided a copy of the delegate’s decision record to the Tribunal with their application for review.
The applicants appeared before the Tribunal on 18 May 2021 to give evidence and present arguments. The Tribunal notes the applicant indicated the second and third applicants were present at the hearing, however the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 1835
Decision Date: 19 May 2021

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate), against a decision to affirm the refusal of their visa application. The appeal was heard by the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant met the English language ability requirement as stipulated by clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires evidence of either holding a specified passport or having undertaken a specified language test within a defined period and achieving a specified score.

The Tribunal found that the applicant did not meet the passport requirement as they held a Kenyan passport, not one from the USA, UK, Canada, New Zealand, or the Republic of Ireland. Crucially, the applicant also confirmed they had not undertaken an English language test within the three years prior to making their visa application, as required by the regulations. While the applicant provided IELTS test results from tests taken after the application was lodged, and one of these achieved the specified score, the Tribunal held that there was no discretion to waive the requirement that the test must have been undertaken within the specified period before the application was made.

Consequently, the Tribunal concluded that the applicant failed to satisfy the criteria for the grant of the visa. The decision under review, which affirmed the refusal of the visa, was therefore affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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)). The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. The delegate’s decision records that the applicant answered ‘yes’ 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) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement?’ on her application for the visa. The delegate found that the applicant had not provided any evidence that she held a passport of a type specified by the Minister and therefore did not satisfy cl 485.212(b). Before the Tribunal, the applicant confirmed she did not hold a current passport from any of the countries specified by the Minister and that she held a passport from Kenya. In the present case, the Tribunal finds that there is no evidence that the applicant has held a passport of a type specified, and cl 485.212(b) is not met. As such the applicant must meet cl 485.212(a). The delegate’s decision records that when making the visa application the applicant provided no evidence of having undertaken a prescribed English test within 3 years before the date of the visa application. The decision records that the applicant requested additional time to submit evidence of the English language requirement on 23 October 2019. On 23 October 2019 she submitted International English Language Test System (IELTS) test results from tests undertaken on 30 September 2019 and 08 October 2019. On 29 October 2019 she submitted a further IELTS test undertaken on 26 October 2019. The delegate found that all 3 tests were undertaken after the visa application was made. The applicant submitted to the Tribunal a copy of the IELTS test results for the test undertaken on 26 October 2019 and written submissions from her representative of 5 May 2021. The evening before the hearing the applicant submitted additional documents including record of assessment tasks, a ‘Statement of Service’ from Uniting Communities, a pay record, and a reference from Senior Pastor Ainea, Rivers of Revival Church dated 15 May 2021. The applicant confirmed before the Tribunal that she had not undertaken an English language test in the 3 years before the day on which the visa application was made. She explained that she had failed several tests and kept returning until she could achieve the desired result. She indicated that she had sat for the test 4 times before she achieved the required result. She confirmed this was the test she undertook on 26 October 2019.

Decision

Reasons for decision

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 The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.Simone BurfordMember

Ratio Decidendi

Legal Principle Established

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