Kyakulumbye (Migration)

[2019] AATA 2234

Kyakulumbye (Migration) [2019] AATA 2234 (13 March 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Trevor Kyakulumbye

CASE NUMBER:  1835033

DIBP REFERENCE(S):  BCC2018/3300452

MEMBER:Alan McMurran

DATE:13 March 2019

PLACE OF DECISION:  Sydney

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

Statement made on 13 March 2019 at 1:15pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – completion of specified English language test – successful language test completed after application lodged – decision under review affirmed

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

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 31 August 2018. Visa Class VC contains Subclass 485. 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).

3. The applicant is a 28-year-old citizen of Uganda. According to Department records, the applicant arrived in Australia on 26 February 2015 on a student visa. The applicant, to his credit, obtained a Master of Finance in Investment Banking from the University of New South Wales on 29 July 2016. Prior to that, the applicant had obtained a Bachelor of Arts with Honours in Accounting and Finance in the period from 26 September 2011 to 20 June 2014 from the University of Kent. Both courses were delivered in English. At the time of making application for the Australian visa, the applicant had not completed a specified English language test, which is a mandatory application requirement.

4. The delegate refused the visa on 9 November 2018 because the applicant did not satisfy the language ability requirement prescribed in the Regulations.

5. The applicant appeared before the Tribunal in a multi-application hearing list on 14 February 2019 to give evidence and present arguments. The Tribunal received oral evidence and submissions from the applicant.  

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. In order to meet the regulation requirements specified in the instrument for the Department to grant the visa, the applicant must have sat for an English test within 36 months before the date of lodgement of the application. In this instance, in the period between 31 August 2015 and 31 August 2018.

9. 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 (being the UK, USA, Canada, NZ or Ireland) and as such cl.485.212 (b) is not met. The applicant therefore must meet cl.485.212 (a) which requires the completion of an English test, approved by the Minister and specified in the instrument.

10. For the purpose of this review, the Tribunal has had regard to the information contained on the Tribunal’s case file and the oral submissions from the applicant at the hearing. The Tribunal wrote to the applicant on 22 January 2019, inviting him to a hearing and for him to provide information concerning the lodgement of the application without the accompanying evidence, and setting out the specification requirements from the Regulations. The Tribunal letter sought to explain that at the time of the visa application lodgement, it must be accompanied by evidence of the applicant having achieved a specified score in an English language test. The letter went on to state that:

    “A preliminary view of your file suggests that your visa application was not accompanied by this evidence. If we find that your visa application was not accompanied by this evidence, we must affirm the decision that is under review”.

11. In response, the applicant accepted the invitation to attend the hearing and provided additional evidence supporting his application. The evidence included copies of the academic achievements received from the University of Kent and the University of New South Wales and attached academic transcripts, a letter from the University of Kent dated 16 September 2014, a copy of DIBP Form 80 (personal particulars for assessment including character assessment), a certificate of training from Careergraph Technology, dated 1 June 2018, and a receipt from IDP showing evidence of payment for an IELTS English test. The receipt was dated 7 October 2018, in anticipation of a test date on 11 October 2018.

12. At the hearing, the applicant told the Tribunal he had completed his study courses on 10 July 2018, having started in England in 2014 before arriving in Australia. The applicant said that he hoped that he could next travel to the USA in order to broaden his work experience and improve his resume with a view to obtaining work internationally, wherever he chose. The applicant was asked about his application and the English test requirement.

13. The applicant said that when he was completing the application, he was “a bit worried” about completing the question about the English language test by answering “no”. He said the question provided no other options than a yes/no answer. The applicant said he had answered the question honestly by saying “no” before he lodged the application. He said he then rang the Department, and viewed the immigration website for information about the English test. He said as he had studied in English in both England and Australia for both of his degrees, he assumed that would be sufficient. He said after he had lodged the application he realised it was “too late for me to do anything about it”, meaning providing evidence of English language testing with the application. He said he was told in a telephone conversation with an officer from the Department that “I think you’ll be alright”.

14. The applicant said that he subsequently applied for and completed an IELTS test on 11 October 2018, as he said “I wanted to do it”. The evidence of the outcome of the IELTS test was before the Tribunal at the hearing. The test result dated 23 October 2018 showed that the applicant received 8.0 for listening, 5.5 for reading, 6.0 for writing and 8.0 for speaking, with an overall band score of 7.0. The IELTS test requires a minimum overall score of 6.0, with a minimum score of 5.0 on each of the 4 test components. The Tribunal explained to the applicant the effect of regulation of 485. 212 and that it was mandatory to provide the test result at the time of application.

15. The applicant’s evidence shows that the applicant had completed the English language IELTS test successfully. It was completed however too late for filing with the application, and the Tribunal explained that it does not have jurisdiction to waive the requirement for the filing of a test result at the time of application, by filing a successful result afterwards. The applicant said in response that if he had known that his application could not succeed after he had (correctly) answered the question in the application form about the English language test, he probably would have left the country and spend some time offshore and “made other arrangements” or perhaps considered making another visa application. He said that he has been unable to work in Australia pending the outcome of the application because he did not have a substantive visa, his student visa having expired “6 months ago”. The applicant said he felt he had been wasting time, and thought he may have been misled by the response he received from the Department over the telephone. He said he was also concerned that now he had a visa refused, it may prejudice other applications.

16. The Tribunal had some empathy for the applicant, given that he has successfully studied two higher degrees in the English language, both in England and in Australia and it was logical for him to believe that his level of English was satisfactory. This subsequently proved to be the case when he received his IELTS test result. It is also fair to say however, that the applicant admits he realised only too late the requirement to have completed a formal test prior to lodging the application and within the requisite period of 36 months. The Tribunal highlighted the fact there was no discretion and asked if the applicant had any further comments, to which the applicant responded that he thought the application form should contain more content about the effect of answering the questions, and that there should be some discretion in cases such as his own, where he had failed to meet the time of application requirement.

    Findings

17. Having considered the applicant’s submissions and taking into account the relevant facts in this matter, the Tribunal is satisfied that the applicant has not completed an English language test as required by the regulation within the requisite period of 36 months before filing the application.

18. The Tribunal further finds that the applicant knew he was required to complete an English language test, which he realised too late to file with his application. The Tribunal is satisfied that the applicant has subsequently successfully completed an IELTS test on 11 October 2018 and met the standard required in that test. The Tribunal finds however that the test outcome was not available until 23 October 2018 and was not filed at the time of application, and the Tribunal has no discretion to waive the requirement.

19. In those circumstances, the tribunal is satisfied that the application lodged by the applicant on 31 August 2018 was not accompanied by evidence that the applicant had undertaken a language test specified by the Minister in the legislative instrument (referred to above).The Tribunal is satisfied that the application was not accompanied by evidence that meets cl.485.212 (a). 

20. 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

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

    Alan McMurran
    Member