Lepcha (Migration)

[2018] AATA 5601

Lepcha (Migration) [2018] AATA 5601 (24 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Tshultrim Dorji Lepcha
Mrs Kuenzang Wangmo

CASE NUMBER:  1809195

DIBP REFERENCE(S):  BCC2018/809463

MEMBER:R. Skaros

DATE:24 October 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 24 October 2018 at 1:43pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Student) visa – English language proficiency – did not have the required English language proficiency – English language test scores specified were not achieved in a test undertaken within three years before the day on which the application was made – decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 19 February 2018. 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 visas on 15 March 2018 because the first named applicant (the applicant) did not have the required English language proficiency. A copy of the delegate’s decision record was provided to the Tribunal.

4. On 17 August 2018, the Tribunal wrote to the applicants and invited them to provide information about the English language proficiency requirements in cl.485.212. The Tribunal received a number of documents, including copies of the applicant’s qualifications, employment reference and IELTS test report results for tests undertaken by the applicant on 5 April 2014 and 24 March 2018. The applicant also provided a detailed written submission.

5. The applicants appeared before the Tribunal on 18 October 2018 to give evidence and present arguments.

6. The Tribunal notes that the applicants had noted on the hearing from that they wanted the Tribunal to take evidence from a witness by phone. While normally the Tribunal would have contacted the witness to take evidence, in this case, the witness’ evidence would not have assisted the applicants.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. 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)).

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, and as such cl.485.212(b) is not met. As such, the applicant must satisfy cl.485.212(a).

10. In the visa application form, the applicant indicated that he had not undertaken an English language test within the preceding 36 months.

11. On review, the applicant provided IELTS test reports for tests undertaken on 5 April 2014 and 24 March 2018, which indicated that he had achieved the required scores. However, neither of those tests were undertaken in the three years before the application was made.

12. In the submissions, the applicant provided details of his studies in Bhutan and Australia. He also provided details of his employment. The applicant stated that he applied for the Subclass 485 visa for which students who had completed studies in Australia for two years were entitled. The submissions also set out details if the visa application, reasons for refusal and correspondence from the Tribunal. The applicant submitted that he had already provided copies of his IELTS test report to the university and the Department three years prior when he applied for his student visa. He stated that he successfully completed a Masters qualification at an Australian tertiary institution in English and that he attached evidence of this qualification to the online application. The online application provided the option to include qualifications as evidence of English.

13. It was submitted that the visa application was costly and time consuming, and they were not informed by the Department that their application was invalid. The applicant submitted that they did not receive an adequate level of service from the Department despite the high level of fees paid. The applicant queried why he had to demonstrate his English language skills through an English test even though he had completed a Masters level qualifications. He queried why he could apply for review if the Tribunal looked at the same requirement as the Department and confined itself to the three years before the application was made. He queried why evidence of English could not be provided after the application is made.

14. The Instrument (IMMI 15/062) prescribes that an IELTS test is specified for the purposes of cl.485.212(a). An overall score of at least 6.0, with not less than 5.0 in each of the 4 test components, is required and the IELTS test must have been undertaken within the three years before the day on which the application was made. Although the applicant had achieved the specified score in the IELTS tests he had undertaken 5 April 2014 and 24 March 2018, unfortunately, these test were undertaken prior to and post the prescribed period. Accordingly, the scores specified were not achieved in a test undertaken within three years before the day on which the application was made.

15. At the hearing, the Tribunal discussed with the applicant the requirements in cl.485.212. The Tribunal explained to the applicant that while it had regard to the matters raised in his written submissions, it has no power to waive the requirements relating to English. The Tribunal explained to the applicant that it was bound by the same law that was considered by delegate and that it had to make its decision in accordance with the applicable legislative provisions. The applicant reiterated much of what he had set out in the written submissions. He also stated that the online system permitted him to lodge the application even though he had indicated he did not sit the English language test and did not have a passport from a specified country. The Tribunal noted that the applicant could make a complaint directly with the Department about the online visa lodgement facility, and that this was not a basis on which it could find his favour. The applicant stated that it is likely the Department has had many people who have had the same experience and he doubted that his complaint would make any difference. The Tribunal explained to the applicant its role and noted that his concerns about the Department’s online facility, the level of service provided and why he had to sit an English test despite completing higher level qualifications in Australia, were all matters over which it has no influence. The applicant stated that he would have liked to gain work experience in his field of study before returning to his home country and that the refusal has made it difficult for him to obtain the required experience.

16. The Tribunal acknowledges the matters raised by the applicant. While the Tribunal accepts that the applicant achieved the required English scores and has completed qualifications in English, the regulations require the applicant to demonstrate his English language proficiency in accordance with the legislative requirements. As explained to the applicant at the hearing, the Tribunal cannot waive the requirements and has no discretion in this case.

17. The Tribunal finds on the evidence that the application was not accompanied by evidence that the applicant had undertaken the specified language test within the specified period of three years before the day on which the application was made. Consequently, the applicant does not satisfy the requirement in cl.485.212(a).

18. 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.

19. The secondary applicant applied for the visa as a member of the family unit of the first named applicant. As the first named applicant does not meet the requirements for the visa, the secondary applicant’s application for a visa must also be affirmed. 

    DECISION

20. The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

    R. Skaros
    Member