Malavita Mohottalalage (Migration)

[2020] AATA 2604

Malavita Mohottalalage (Migration) [2020] AATA 2604 (23 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Dr Menaka Samanmali Malavita Malavita Mohottalalage
Mr Danuska Namal Kumara Jayasundara Jayasundara Mudiyanselage
Miss Amelia Samadhi Jayasundara

CASE NUMBER:  1916113

DIBP REFERENCE(S):  BCC2019/2479281

MEMBER:Warren Stooke AM

DATE:23 June 2020

PLACE OF DECISION:  Melbourne

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

Statement made on 23 June 2020 at 3:09pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – test booked but not taken at time of application – wording in application form ambiguous – score otherwise meets requirement – 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 applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 10 May 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 visas on 13 June 2019 because the first named applicant (the applicant) did not have the required English language proficiency.

4. The applicants appeared before the Tribunal on 17 June 2020 to give evidence and present arguments.

5. The applicant confirmed to the Tribunal that she had received a copy of the delegate’s decision and had read the decision. In this regard, the applicant stated that she understood that the visa application was refused on the basis that she did not meet the English criteria at the time of application.

6. The applicant confirmed to the Tribunal that she had provided a copy of the decision to the Tribunal with her application.

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 of the Register of Instruments - Skilled visas. 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).

10. The applicant is a 33 year old from Sri Lanka, who provided evidence that she arrived in Australia in June 2014, has completed the requirements for the award of a PhD at the University of Melbourne, where her thesis was “The effect of spatial visual process outside of the fovea.”

11. The applicant provided evidence that she is currently employed by the University of Melbourne, as a lecturer in Optometry Science.

12. The applicant provided evidence that she completed an IELTS Test on 14 May 2019, with an overall band score of 7.0. [Tribunal File: Document 5824677]

13. The applicant confirmed in evidence, at the hearing, that she had not taken an English language test at the time of application and that her test date was 14 May 2019. The Tribunal put this information to the applicant, and she stated: “Yes, that is correct”.

14. The applicant stated that the first page of the application referenced that the applicant “must have taken steps to meet the requirements” and “I had booked my test”.

15. The applicant provided evidence that she booked her test three weeks before she submitted her application and that the 14 May 2019 was the first date available for the test. The applicant stated that the form she completed is ‘ambiguous’, as at page 17 of the application she inserted the response of “no” to having taken a test. In this regard, the applicant stated that she expects that the question should more correctly ask ‘what is the result’.

16. The Tribunal explained to the applicant that the Tribunal does not have any discretion regarding applications that do not satisfy the requirement to provide a copy of an English language test score with the application, at the time of application.

17. The Tribunal is satisfied that the applicant did not submit an English language test score result with her application lodged on 10 May 2019 and that she confirmed in evidence that she did not undertake an English language test until 14 May 2019, which was subsequently submitted to the Department. As such, the applicant has not complied with cl.485.212(a) at the time of application.

18. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

19. The Tribunal acknowledges that the applicant is highly qualified in Optometry Science and is engaged as a lecturer at the University of Melbourne. In this regard, the Tribunal notes that the applicant has an English language proficiency with an overall IELTS test score of 7.0 and that her non-compliance with the requirements of cl.485.212(a) by furnishing to the Department an English language test score, as prescribed, is the reason for her non-compliance rather than her English language proficiency, per se. The Tribunal accepts that the applicant’s non-compliance with the requirements of cl.485.212 was inadvertent and due to the applicant’s perceived ambiguity regarding the requirements.

20. In these circumstances, it is not appropriate for the Tribunal to provide advice to the applicant, which should be sought from a Registered Migration Agent or lawyer, however, the Tribunal notes that the applicant can make a request directly to the Minister concerning the decision in this matter. The Tribunal further notes that the Minister may exercise discretion in circumstances of ‘exceptional economic, scientific, cultural or other benefit that would result from you being permitted to remain in Australia’.

21. 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

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

    Warren Stooke AM
    Member