Kumar (Migration)

[2019] AATA 4610

Kumar (Migration) [2019] AATA 4610 (21 October 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Jaineet Kritesh Kumar

CASE NUMBER:  1913893

DIBP REFERENCE(S):  BCC2019/1251213

MEMBER:Bridget Cullen

DATE:21 October 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 21 October 2019 at 6:03pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – minimum required score – subsequent test not completed within relevant timeframe – ‘time of application’ criteria – decision under review affirmed

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

CASES
Baig & Ors v MIBP [2018] FCCA 2986

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 to refuse to grant 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 12 March 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 14 May 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 8 October 2019 to give evidence and present arguments.

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

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. The relevant instrument specifying 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 cl.485.212(b) is not met. As such the applicant must meet cl.485.212(a).

9. On 12 March 2019, when the applicant applied for the visa, he submitted an IELTS Test Taker Score Report, indicating that he had achieved an overall score of 5.5. The Applicant, by virtue of having taken the test through IELTS, was required to achieve a minimum overall score of 6. This formed the basis of the refusal by the delegate.

10. In his Statutory Declaration dated 23 July 2019, the applicant explains that he mistakenly believed that he passed the IELTS test.  He says that he scanned the test results, and saw that he had achieved a pass in all four components, and forgot to look at the overall score which was not at the score specified.  He completed the visa application himself, without the benefit of professional assistance.

11. With lodgement of the applicant’s application for review of the decision, the applicant submitted a Pearson PTE Academic Test Taker Score Report, taken on 11 June 2019, with an overall score of 53. The minimum overall score for the PTE test is 50 (IMMI 15/062). The applicant, and his representative arrived for the hearing clearly believing that having now completed the PTE Test with a result higher than the minimum overall score, that the Tribunal would now simply remit the matter to the Department.  The applicant, and his representative, do not appear to have appreciated the need to also complete the test in the relevant timeframe.

12. The Tribunal asked the applicant whether he had completed any other English tests within the period specified in the instrument.  He confirmed that he had only completed the two English tests mentioned above.

13. The Tribunal provided the applicant a period of time following the hearing to make additional submissions, as the Tribunal had flagged that its initial view was that cl.485.212(a) was a “time of application” criterion.  The Tribunal explained that it would consider any further submissions the applicant made, particularly in relation to the interpretation of the law. Specifically, the Tribunal flagged that the issue before it was whether the applicant’s second language test (PTE Academic, test date 11 June 2019) could satisfy the requirement in cl.485.212.

14. The applicant has provided post-hearing submissions, prepared by his representative.  The representative has flagged authorities where he says other Tribunal Members have allowed a “time of application” criterion to be met through provision of post-decision evidence.  None of the authorities provided is relevant, or persuasive.  As an initial observation, it must be said that in the area of migration law, attention must be had to the particular criterion relevant.  Drawing an analogy between different criteria is tantamount to comparing apples and oranges. 

15. The representative does not appear to understand the role of merits review in the MRD.  The Tribunal is not critical – the representative is not a solicitor, and the Tribunal understands that statutory interpretation is complex.  The crux of the representative’s submissions is that this is “merits review” and the Tribunal stands in the shoes of the Department. 

16. What the representative does not appear to understand is what is met by “time of application”.  The time of application is the time that the applicant applies to the Department, not the time that the applicant applies for review in the Tribunal.  Here, the Tribunal stands in the shoes of the Department as at the time of application, on 12 March 2019.

17. It is then a basic proposition of administrative law that there are “time of application” criteria, and “time of review” criteria.  If the Government had drafted cl.485.212(a)(ii) as a time of review criteria, the applicant would now meet it.  However, this is not the case.

18. The requirement in cl.485.212 is as follows:

    The application was accompanied by evidence that:

    (a)  the applicant:

    (i)    has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

    (ii)   has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

    (b)  the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.

19. The relevant instrument is IMMI 15/062. For cl.485.212(a)(ii), the test must have been undertaken within the three years before the day on which the application was made (IMMI 15/062, Item 4).

20. The visa application was made on 12 March 2019, and the PTE Academic test was completed 11 June 2019. It is a finding of fact for the Tribunal whether the applicant completed a specified language test in accordance with the requirements in IMMI 15/062. However, as the applicant’s PTE Academic test was not undertaken within the three years before the day on which the application was made, the Tribunal finds that it was not completed in accordance with IMMI 15/062 and could not therefore meet the requirement in cl.485.212(a)(ii) that the applicant “has achieved,  within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument …”. (bold emphasis added by the Tribunal).

21. This strict interpretation of IMMI 15/062 within the context of cl.485.212 is consistent with that applied in Baig & Ors v MIBP [2018] FCCA 2986.

22. 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

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

    Bridget Cullen
    Member