Kooaroon (Migration)

[2020] AATA 2996

Kooaroon (Migration) [2020] AATA 2996 (10 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Pongtiwat Kooaroon

CASE NUMBER:  2002116

DIBP REFERENCE(S):  BCC2019/5040823

MEMBER:Karen McNamara

DATE:10 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 10 July 2020 at 12:37pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test not undertaken within three years before application made – specified score achieved in test after application made – claim that department advised he could take test after application made – no discretion to waive requirement – ‘accompanied by evidence’ – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cl 485.212(a)(ii)

CASES

Anand v Minister for Immigration and Citizenship [2013] FCA 1050

Nguyen v Minister for Immigration [2016] FCCA 1523

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 (the delegate) to refuse to grant Mr Pongtiwat Kooaroon (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 8 October 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 (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.

3. The delegate refused the visa on 16 January 2020 because the applicant did not have the required English language proficiency.

4. The applicant lodged an application for review of the delegate’s decision with the Tribunal on 5 February 2020. A copy of the delegate’s decision record accompanied the review application.

5. On 25 June 2020, the applicant appeared before the Tribunal via telephone, to give evidence and present arguments.

6. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. 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.

7. The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.

8. At the hearing the representative requested an opportunity to provide additional submissions to the Tribunal, to which the Tribunal concurred. 

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)).

11. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. The relevant passports are a valid passport issued by; the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

12. 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.

13. The Tribunal is satisfied that the applicant holds a Thai passport and therefore does not hold a passport specified in IMMI 15/062. The applicant therefore must demonstrate that he has achieved the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 8 October 2019).

14. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 8 October 2019 the applicant lodged an electronic application for a Temporary Graduate (class VC) (Post-Study Work) (subclass 485) visa. When making the visa application the applicant answered “No” to the question “Have you undertaken an English test within the last 36 months?”

15. The Department’s records confirm that on 5 November 2019 the applicant uploaded an IELTS report (Test Report Number 19AU008125KOOP468G) for a test conducted on 31 October 2019, undertaken after the date of lodgement of his 485 Post Study Work visa application.

16. The delegate records that the IELTS test was not conducted within the 3 years immediately before the day on which the application was made and therefore the applicant did not satisfy regulation 485.212(a)(ii).

17. The applicant has provided to the Tribunal an IELTS test report for a test undertaken on 31 October 2019, however this test was undertaken, and the score attained after the visa application was made. The applicant scored 8.5 for listening, 9 for reading, 8 for writing, 8 for speaking and an overall band score of 8.5 which exceeds the minimum required score of 6 as stipulated in the relevant instrument. However, this test was undertaken, and the score attained after the visa application was made.

18. At the hearing the Tribunal discussed with the applicant the requirements that the visa application be accompanied by evidence that the applicant had undertaken a specified language test in the specified period and achieved the specified results. While it noted that the applicant sat an IELTS on 31 October 2019 in which he achieved the specified results, the test was outside of the specified period and did not accompany the application.

19. The applicant told the Tribunal prior to lodging the application he contacted the Department and was advised on two separate occasions that he could sit the English test after he had made his application. The applicant told the Tribunal that he had not sat an English test prior to making the application and that his student visa was due to expire hence why he contacted the Department to seek advice.

20. At the hearing the applicant’s representative referred to Tribunal decisions which he believed involved similar circumstances (no specific case details were provided). It was submitted that the Tribunal should provide consideration to such precedent and remit the applicant’s matter to the Department for reconsideration. The Tribunal explained to the representative that the Tribunal is not bound to follow other Tribunal decisions which have no precedential value. 

21. On the 26 June 2020 the representative submitted to the Tribunal the following;

    ‘Thanks for giving us opportunity to make submission related to English language requirements (clause 485.212). I’ve seen some federal circuit court (FCCA) and Administrative Appeal Tribunal (AAT) past cases and realised that unfortunately, AAT does not have discretion to waive off this clause.

    I would still request, if possible, to waive off this requirements considering the following:

    -Applicant has been misguided by the Department of Home Affairs at Sydney office. They informed applicant that the English test results can be submitted later after the SC 485 application lodgment.

    -He is fluent in English language (IELTS 8.5 WITH 8 IN EACH – SUPERIOR ENGLISH LEVEL), please see attached IELTS results dated 31/10/2019.

    -His Subclass 485 application was lodged on 08/10/2019 so just in about three weeks he met IELTS requirements and also submitted this result to the subclass 485 application.’

22. Based on the information before it, the Tribunal is satisfied that that the applicant has undertaken a specified test, an IELTS test on 31 October 2019 in which he achieved the specified score to satisfy his application.

23. The Tribunal finds however that the IELTS test taken on 31 October 2019, was not taken in the specified period and did not accompany the application and so, the applicant does not meet the requirements of cl.485.212(a)(ii).

24. The Tribunal has considered the representative and applicant’s submissions in which the applicant claims the Department had advised him that he could sit the English test after making his application. While it is unfortunate that the applicant, at the time he lodged his application was not made aware of the requirement that his application be accompanied by evidence that he has achieved the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 8 October 2019), the Tribunal is unable to make a favourable decision on the assertions of the applicant that he was provided incorrect advice from the Department. The Tribunal must be satisfied the application was accompanied by evidence that the requirements of the relevant instrument had been met as required by cl.485.212. (Emphasis added)

25. The Tribunal has considered whether the application was ‘accompanied by evidence’. The applicant acknowledged that he did not provide an IELTS test with his visa application. The Tribunal was told subsequent to submitting his application with the Department, the applicant sat an IELTS tests obtaining the specified score on 31 October 2019. This test was provided to the Department on 5 November 2019, approximately a month after the applicant lodged his application with the Department. Whilst the Tribunal acknowledges that the applicant has provided evidence of having undertaken a language test and achieved the score prescribed, it must still decide whether the visa application was accompanied by evidence that the applicant had undertaken a language test specified in the instrument; and achieved, within the period specified in the instrument, the score specified.

26. In considering this matter the Tribunal has had regard to relevant case law. The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered a clause (cl.487.216) requiring that the visa application be accompanied by evidence and held that:

    ‘It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…’

27. The Tribunal notes that Anand’s case dealt with a ‘time of application’ requirement under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  However, the criterion that applies in this case itself specifies that ‘The application was accompanied by’ the specified evidence. The Tribunal is of the view the use of the word ‘was’ locates the requirement clearly in the past. While the Tribunal takes any information provided into account at the time of its decision there are some provisions which must be met before that time. The Tribunal is of the view the requirement of cl.485.212 is one of those provisions.

28. The Tribunal has had regard to another case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a Subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time the application is lodged and when the evidence which must accompany that application must be provided.  In that case, Burchardt J held that a 29 day gap was too great to meet the temporal requirement.  The Tribunal notes that in that case, Burchardt J was considering cl.485.223, not cl.485.212.  However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence …, which is essentially the same phrase as that used in cl.485.212.

29. The Tribunal has had regard to the applicant’s evidence and representatives’ submissions. The Tribunal acknowledges that the applicant in fact has proficient English, as demonstrated by his oral evidence at hearing and his IELTS test results. However, cl.485.212 and the relevant legislative instrument specify the way in which the English language requirement must be satisfied. 

30. The Tribunal observes that it has no discretion within the Act or Regulations to waive the requirements of cl.485.212.

31. In this case the applicant did not provide the successful IELTS test results to the Department until 5 November 2019, approximately one months after the visa application was made. The Tribunal has enormous sympathy for the applicant’s circumstances, who unfortunately misunderstood the requirements of the law. However, considering the case law the Tribunal is not satisfied the application was ‘accompanied by’ this evidence. The Tribunal is of the view that in this case there was not a close temporal connection between the visa application and the time the applicant provided the evidence.  The Tribunal therefore is not satisfied that the application was accompanied by evidence that the applicant meets cl.485.212(a).

32. 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

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

    Karen McNamara
    Member