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 indicated it would not be necessary to take evidence from them.
The Tribunal exercised its discretion to hold the hearing by telephone. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.
The applicants were represented in relation to the review by their registered migration agent. The hearing was conducted with the assistance of an experienced interpreter in the English and Swahili languages.
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.
The applicant explained that she had invested significant money in her education and that her children were receiving a good education in Australia. They were safe here and Australia had been able to continue to function during COVID-19 and she was grateful that she was here and tried to give back to the community. She said that after her husband died in 2012 she had tried to take over the business, a hotel, but did not have the skills so had decided to study. She had a dream to go back with her children and open a business in her country.
The applicant’s representative submitted that the Tribunal should accept the evidence the applicant had successfully taken English language tests following the day the application was made, citing the decision of the High Court in Berenguel v Minister for Immigration and Citizenship [2010] HCA 8 (Berenguel). The applicant submitted:
The English criteria would be met, should the Berenguel principle be accepted.
We ask that you please consider this matter as the visa applicant has invested a significant amount of time and money for her studies in Australia and wishes to gain work experience within her field to be able to successfully run a business back home. The visa applicant has substantially invested in her studies, her children’s studies, which has had a positive impact on the Australian economy. The visa applicant’s aim is to obtain experience specifically in hotels as the experience will expose her to a wider variety of cuisines, which will provide her an advantage back home. The applicant asks that she be granted the visa and excused on the technicality.
The Tribunal discussed these submissions with the representative at the hearing. The representative reiterated the contribution the applicant had made to the community and the fact she was without representation at the time of the application. The representative submitted that the application process was confusing because it allowed people to submit applications without alerting them that they had not provided the English language test required and that this was disadvantaging applicants. She did not have any additional submissions to make with respect to legal issues arising on the review.
The Tribunal noted that the decision of the High Court in Berenguel concerned earlier provisions of the Act which were differently expressed in significant aspects. The application of the approach in that decision to a set of regulations made following the High Court decision was discussed by Mortimer J in the decision of Kaur v Minister for Immigration and Border Protection [2015] FCA 584 (Kaur). In Kaur, her Honour took the view that the test expressed in the Regulations left ‘no room for the approach adopted by the High Court in Berenguel’. Her honour noted, at [41], that:
The text now focuses on three historical facts – first, that the applicant undertook a test; second, that the test was conducted in a period “immediately before” the visa application; and third, that in a test conducted during that period the applicant achieved a qualifying score. These historical facts either exist at the time of application, or they do not.
Similarly in Milanes v Minister for Immigration and Border Protection [2015] FCA 1105, Katzmann J discussed Berenguel and the Regulations that succeeded the decision of the High Court, and agreed with the approach adopted in Kaur, noting at [55]:
While it may seem logical and sensible that the Minister consider the most recent information concerning the applicant’s proficiency in English, the legislative intention is otherwise. It follows that the results of any test conducted outside the three year period specified in reg 1.15C would not be relevant further information within s 55 of the Act.
The approach in Milanes and Kaur rejects the suggestion that an applicant attempting to submit evidence of a test undertaken outside the prescribed raised circumstances is not contemplated in the legislation. On the contrary, the strict temporal approach in the legislation was designed to deal with such circumstances by excluding such results from meeting the criteria. The Tribunal notes that while these decisions concerned the test timing requirement in reg 1.15C of the Regulations (as it then was), the courts have noted those provisions were materially indistinguishable from IMMI 15/062 and the courts’ comments on them apply to the same considerations under the instrument.[1]
[1] Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) at [18]–[19].
The Tribunal considers that the critical date relating to the test is the date the test was undertaken. Under the current definitions, an English language proficiency test undertaken after the date of application cannot be accepted for the purposes of the Schedule 2 criteria and the applicable points test provision for the visa.[2]
[2] See Kumar v MIBP [2014] FCA 1336, citing with approval Singh v MIBP [2014] FCA 185 and Datchinamurthy v MIBP [2014] FCCA 258 where the Court referred to the ‘very clear’ words of reg 1.15C. See also Milanes v MIBP [2015] FCA 1105 and the cases cited there at [56]. Each of these judgments concerned reg 1.15C, however the provisions are materially indistinguishable from IMMI 15/062. Singh v MIBP [2015] FCCA 1533 provides a stark example of the effect of the various amendments to the definition of ‘competent English’. In that case the applicant’s successful test was taken just outside the permissible 2-year period before the date of application, which was shortly before the introduction of the 3-year period.
With respect to the lack of representation at the time of the application, the Tribunal notes that there is no right to legal representation in migration proceedings[3] and the Tribunal cannot waive compliance with the criteria based on the fact the applicant was unrepresented or misunderstood the requirements.[4] The Tribunal’s task is to determine whether the applicant meets the criterion.
[3] Bodenstein v Minister for Immigration and Citizenship [2009] FCA 50
[4] Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274 (Kendall J, 18 February 2021) at [51].
The Tribunal notes the applicant’s submissions that the online application process was confusing and did not alert applicants to the need to provide evidence of the English language requirement. There was no evidence regarding the form of the online application before the Tribunal. However, the Tribunal understands the representative’s concern which has been expressed on similar applications before the Tribunal. While the Tribunal may be sympathetic to these concerns the format of the application cannot change the criteria for the visa. As noted by Beach J in Kumar v Minister for Immigration and Border Protection [2014] 2014] FCA 1336 at [43]:[5]
even if he was misled, that does not alter the relevant criterion that had to be satisfied all the Tribunal’s task under section 65 of the act. There was no dispute that the criterion had not been satisfied. Moreover, the form of the application could not rewrite the statutory criterion which the Tribunal was bound to consider and apply.
[5] See also Awan v Minister for Immigration [2020] FCCA 3134 at [38].
Even in circumstances of misleading or confusing information from the Department, including in circumstances where the application form for the visa was misleading, the Tribunal’s role is restricted to performing this task.[6] The Tribunal explained to the applicant that regardless of the reasons for her not meeting the criterion, they must be met. This includes the requirement that the applicant has undertaken a specified English language test within the 3 years (36 months) before submitting her visa application. While the Tribunal had some sympathy for the applicant’s circumstances, the Tribunal explained that it does not have any discretion to waive this requirement.[7]
[6] With respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285, Mohamed Farook v MIBP [2014] FCA 1017 at [55], and Kumar v MIBP [2014] FCA 1336 at [43].
[7] See for example Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [10] and [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140 at [23]–[24]; Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274 (Kendall J, 18 February 2021) at [45]–[58]; Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) at [18]–[19]; Kumar v Minister for Immigration and Border Protection [2017] FCCA 2406 at [15] (affirmed on appeal by Robertson J in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24]); see also Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [41], where Mortimer J reached the same conclusion about the test timing requirement in reg 1.15C of the Regulations, which the courts have noted is materially indistinguishable from IMMI 15/062.
The Tribunal indicated to the applicant’s representative that while it understood the submissions, it did not accept that they provided a basis on which the Tribunal could find the applicant met the criteria for the visa.
At the hearing the Tribunal explained to the applicant the requirements of cl 485.212. It explained that to meet the requirement the applicant had to provide evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified. It explained that the period specified is 3 years (36 months) before the day on which the visa application was made.
The Tribunal explained to the applicant that the criteria must be met. This includes the requirement that the applicant has undertaken a specified English language test within the 3 years (36 months) before submitting his visa application. While the Tribunal has sympathy for the applicant’s circumstances, the Tribunal explained that it does not have any discretion to waive this requirement.[8]
[8] See for example Thlork v Minister for Immigration & Border Protection [2019] FCA 333 at [10] and [12]; Kumar v Minister for Immigration & Border Protection [2018] FCA 140 at [23]–[24]; Ugyen v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCCA 274 (Kendall J, 18 February 2021) at [45]–[58]; Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) at [18]–[19]; Kumar v Minister for Immigration and Border Protection [2017] FCCA 2406 at [15] (affirmed on appeal by Robertson J in Kumar v Minister for Immigration and Border Protection [2018] FCA 140 at [24]); see also Kaur v Minister for Immigration and Border Protection [2015] FCA 584; 233 FCR 507 at [41], where Mortimer J reached the same conclusion about the test timing requirement in reg 1.15C of the Regulations, which the courts have noted is materially indistinguishable from IMMI 15/062.
The references and employment records submitted by the applicant indicate that she has been employed in Australia as a care worker at an aged care facility and has been contributing to the community including through her church. The Tribunal acknowledges her contribution. The Tribunal accepts the refusal has implications for the applicant and her family including the dependent applicants. However, the Tribunal’s role was to determine whether the applicants met the criteria for the visa. It was not concerned with, and had no discretion to take into account, the consequences of any refusal.
The Tribunal explained that while it was sympathetic to the applicant’s circumstances the Tribunal did not have any discretion to find that she met the English language requirement on some other basis than was specified in the instrument. This included results of the IELTS test completed after the application was made.
The Tribunal accepts that the applicant has now undertaken a specified English language test – the IELTS test undertaken on 26 October 2019 – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. Tests completed on 30 September 2019 and 8 October 2019 were also not completed within the required timeframe and did not achieve the specified scores. Accordingly, it was not undertaken in the period specified in the instrument, within the 3 years before the day on which the application was made. The Tribunal is not satisfied the visa 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.
The Tribunal is not satisfied that the application was accompanied by evidence that meets
cl 485.212(a).

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 Burford
Member