Liu (Migration) - [2018] AATA 2651

Liu (Migration) [2018] AATA 2651 (12 June 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Hongru Liu
CASE NUMBER:  1731328
DIBP REFERENCE(S):  BCC2017/3045385
MEMBER:Alison Mercer
DATE:12 June 2018
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.
Statement made on 12 June 2018 at 3:59pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Requirement for application to be ‘accompanied by’ evidence of English language proficiency – Where applicant had completed test but not submitted evidence to the department – Evidence submitted upon receiving refusal notification – Evidence cannot be said to have ‘accompanied’ the application – Decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 65, 351
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212
CASES
Anand v Minister for Immigration and Citizenship [2013] FCA 1050
Panchal v Minister for Immigration [2012] FMCA 562

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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).
The applicant applied for the visa on 23 August 2017. 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.
The delegate refused the visa on 11 December 2017 because the applicant did not have the required English language proficiency. The delegate found that the applicant answered ‘yes’ to the question in his online subclass 485 visa application about whether he had undertaken an English test in the 36 months preceding the visa application, but did not provide any evidence of having done so, despite being requested to do so by the Department on 1 November 2017. The delegate further found that the applicant did not hold a specified passport, and thus found that he could not meet cl.485.212 as a whole.
The Tribunal received a review application from the applicant on 12 December 2017. It was accompanied by:
·a copy of the delegate’s decision;
·a copy of an Australian Federal Police (AFP) check issued to him on 17 August 2017;
·an International English Language Testing System (IELTS) test result form issued to him on 19 May 2015 indicating that he obtained an overall score of 6.0 in a test he took on 9 May 2015;
·a copy of the biodata page of his Chinese passport;
·a letter of completion from Deakin University issued to him on 1 December 2017, indicating…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] AATA 2651
Decision Date: 12 June 2018

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, subclass 485, against the Department's decision to refuse their application. The appeal was heard by the Tribunal, presided over by Member Alison Mercer.

The central legal issue before the Tribunal was whether the applicant had satisfied the requirements of clause 485.212 of Schedule 2 to the Migration Regulations 1994. Specifically, the Tribunal had to determine if the applicant's visa application was "accompanied by" evidence of English language proficiency, as mandated by the regulations. The applicant had completed an English language test and achieved the required score, but this evidence was not submitted with the initial application.

The Tribunal reasoned that the phrase "accompanied by" required the evidence to be submitted at the time of the application, not subsequently. Citing the case of *Panchal v Minister for Immigration* [2012] FMCA 562, the Tribunal held that the evidence could not be considered to have accompanied the application when it was provided only after the Department had issued a refusal notification. As the applicant had not met the requirement of clause 485.212(a) by providing the necessary evidence with their application, they did not satisfy the criteria for the grant of the visa.

Consequently, the Tribunal affirmed the Department's decision to refuse the applicant's subclass 485 visa application.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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. 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. Accordingly, the applicant must meet cl.485.212(a). Based on the evidence before the Tribunal, it is satisfied that:· the applicant made his subclass 485 visa application online on 23 August 2017, in which he indicated that he had sat an English test in the previous 36 months; · the Department sent a request for the applicant to provide various documents, including evidence of his English proficiency, on 1 November 2017; · the Department refused the applicant’s subclass 485 visa application on 11 December 2017; and· the applicant provided an IELTS test report form to the Department on 12 December 2015 indicating that he undertook a test on 9 May 2017 in which he obtained an overall score of 6.0 with scores of 6.0 for listening, 6.5 for reading, 6.0 for writing and 6.0 for speaking. Item 1 of IMMI 15/062, the relevant written instrument, specifies that an IELTS test is acceptable for the purposes of cl.485.212(a)(i). Item 3 of IMMI 15/062 specifies that this test (or any other specified English test) must have been undertaken by the applicant within the 3 years before the day on which his visa application was made (that is, in the 3 year period immediately before 23 August 2017). The Tribunal is satisfied that the applicant’s IELTS test of 9 May 2015 meets this requirement. Item 2 of IMMI 15/062 specifies that, for an IELTS test, the required minimum overall score is 6.0 points. Accordingly, the Tribunal finds that the applicant’s IELTS test results from 9 May 2015 meet the minimum overall mark. Moreover, the applicant’s scores for each of the 4 test components in this test exceeded the minimum score of 5. They therefore satisfy cl.485.212(a). The issue for the Tribunal is whether they can said to have ‘accompanied’ the applicant’s visa application. The Tribunal has regard to the case of Panchal v Minister for Immigration [2012] FMCA 562, in which Scarlett FM considered the phrase ‘accompanied by evidence’ in relation to cl.485.216 (identically worded to cl.485.212), and concluded that the phrase ‘… clearly refers to something other than that which is contained in the online application form’ (at [84]). As noted above, it was not disputed that the applicant did not provide an IELTS test report form with his visa application (although he provided evidence of it the day after the refusal of the visa application).

Decision

Reasons for decision

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 applicant a Skilled (Provisional) (Class VC) visa.Alison MercerMember

Ratio Decidendi

Legal Principle Established

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