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 he completed a Master of Information Technology (Professional) degree there between 1 November 2014 and 6 July 2017; and
·an email from the applicant to the Department on 11 December 2017, indicating that he had received the refusal and noting that he had all the documents listed in the Department’s checklist request of 1 November 2017 (except for his health assessment results). He believed he had already submitted them and therefore read the Department’s request for documents of 1 November 2017 as a checklist. As he knew he had already obtained the documents listed, he did not respond, but now realised that he should have done so.
On 18 December 2017, the applicant provided the Tribunal with the reference number to access his health assessment results. He also provided his Deakin University testamur for his Master of IT (specialising in Data Analytics and Networking) and a letter issued by BUPA to him on 11 December 2017 confirming his health insurance cover.
On 16 March 2018, the Tribunal wrote to the applicant to invite him to attend a hearing on 4 April 2018. The invitation letter set out in detail the English proficiency requirements, including the specified English tests, the time period in which they had to have been undertaken and the specified minimum scores required for each test.
On 28 March 2018, the Tribunal wrote again to the applicant to invite him to provide any evidence (such as a screen shot from his Immi online account) that showed that he had provided documents, including his IELTS test result form issued on 19 May 2015) to the Department on or when he lodged his online subclass 485 visa application on 23 August 2017.
On 29 March 2018, the applicant responded by email that he did not have a screen shot establishing this. He stated that he had gone through his Immi account, and could find no record that he had uploaded any materials (apart from making the online visa application on 23 August 2017). He further stated that he was fully occupied with work and was working on average 12 hours per day at that time and believed that this meant he had neglected to upload the materials or to respond to the Department’s request, even though he had all of the required material all along, and all of it had been obtained by him prior to making the visa application itself. He asked the Tribunal to assess his case on the basis of the material he had now provided, including his IELTS test results.
The applicant appeared before the Tribunal on 4 April 2018 to give evidence and present arguments. He told the Tribunal that he started preparing his subclass 485 visa application after he graduated as he knew that he had to lodge it before his student visa expired. It was a stressful period for him as he was by then working full time as well as doing an online AI course. He acknowledged that although he had gathered the material required to lodge the subclass 485 visa application, he did not upload it with the online application. He was very busy and did not realise that he should have done so. He assumed he would be asked to do so. Even when he received the checklist from the Department, he did not appreciate that this was a request to provide information. He viewed it as a checklist only and was satisfied that he had all of the documents listed, but he realised that he had not checked the Immi portal to see that he had uploaded them, he only checked his own computer folder in which they were stored. The applicant said that he did consult a lot of people before he lodged the online visa application, and was under the impression that he would be contacted by the Department if there was a problem. He sent all of the material he had as soon as he got the refusal decision but it was too late. The applicant told the Tribunal that he was fully qualified and had had all the required documents all along; it was an inadvertent oversight on his part not to have uploaded them before his visa was refused. The Tribunal discussed with the applicant the words ‘accompanied by evidence’ as they appear in cl.485.212 and the relevant case law authorities on this phrase.
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).
The Tribunal has also had had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered an identically worded clause (cl.487.216) 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…
The Tribunal notes that Anand’s case dealt with an arguably more flexible formulation of the requirement, as the ‘time of application’ requirement in that case came under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself. While the heading informs the criterion, it is not determinative. However, in the form of the criterion that applies to this case, the criterion itself specifies that ‘when the application was made’ it ‘was accompanied by’ the specified evidence’ and the expressions ‘had applied’ and ‘had made the arrangements’ (contrasted to ‘has applied’ or ‘has made the arrangements’) locate the substantive content clearly in the past.
The Tribunal acknowledges that the applicant provided to the Tribunal (and the Department, after its refusal decision) an IELTS test report form from 9 May 2015, but as he conceded, despite having this in his possession at the time he made his online visa application, and at the time he was sent a checklist request by the Department, he did not supply it to the Department. He ultimately supplied it to the Department after his visa was refused on 11 December 2017, some 3.5 months after he made the online visa application. The Tribunal cannot regard this as ‘accompanying the application’.
The Tribunal finds that to be successful, the applicant must meet cl.485.212(a), and thus cl.485.212 as a whole, in the way that that provision sets out, and it further finds that he did not do so. He therefore cannot be granted a subclass 485 visa.
The Tribunal acknowledges that the applicant failed to appreciate that he was required to supply the IELTS test report form with, or very shortly after, his visa application. The Tribunal further accepts that the applicant is dismayed that such a seemingly inadvertent and technical oversight could derail his subclass 485 visa application, particularly since he has been able to provide an IELTS test report from undertaken in the relevant 3 year period which shows he has the required level of English proficiency. However, the Tribunal is required to be satisfied that cl.485.212 is met, and that it is met in the way set out in its clear wording (as confirmed by the relevant case law) as it is bound to apply the law as it is written. The applicable law does not give the Tribunal any power to waive or overlook the need to meet cl.485.212.
The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to the applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred to the Minister for consideration are set out on the Department’s website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening: >
The guidelines on unique or exceptional circumstances include compassionate circumstances regarding an applicant’s health that if not recognised would result in serious, ongoing and irreversible harm and continuing hardship, exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia, and circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation, or where the application of the relevant legislation leads to an unfair or unreasonable results in the case of a particular outcome.
The Tribunal notes that it remains open to the applicant to raise any evidence that he considers relevant, in seeking Ministerial intervention directly, should he believe it appropriate to do so.
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 Mercer
Member