Marasinghe Arachchige (Migration)

[2019] AATA 3730

Marasinghe Arachchige (Migration) [2019] AATA 3730 (30 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Randimal Dhanila Marasinghe Arachchige

CASE NUMBER:  1913053

DIBP REFERENCE(S):  BCC2019/567685

MEMBER:Danielle Galvin

DATE:30 July 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

·cl.485.212(a) of Schedule 2 to the Regulations

on 30 July 2019 at 9:19am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – Temporary Graduate Work stream – timeframe requirements – IELTS test results provided – achieved score specified to satisfy English language requirements – visa application accompanied by evidence – administrative error – decision under review remitted

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 2.03AA(2), Schedule 2, cl 485.212(a)

CASES
Anand v MIAC [2013] FCA 1050
Nguyen V MIBP [2016] FCCA 1523

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 20 February 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 visa on 16 May 2019 because the applicant did not provide evidence to the Department, in the requisite timeframe, that the applicant had undertaken an English test demonstrating English competency for the purposes of meeting the criteria of cl.485.212 of the regulations.

4. The visa cannot be granted unless cl.485.212 is met by the applicant at the date the delegate made their decision. The English language test is one of the mandatory requirements to be met at the time of lodging the Temporary Graduate Work Stream (VC) visa application.

5. The applicant lodged their application on line on 20 February 2019. The applicant had made the declaration in their visa application that they had undertaken an English test within the last 36 months of the date of the application which demonstrated competent English and provided the date of the test, the type and the test report number in the declaration.

6. The applicant holds a Sri Lankan passport.

7. The applicant applied to the Tribunal for a merits review and submitted IELTS test results in support of the application dated 9 August 2018 with a test report form number of 18AU001420MARR166G, the date of the test being 28 July 2018.

8. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

9. 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)).

10. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.

11. 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).

12. IMMI 15/062 specifies that the IELTS test is an acceptable English language test for the purposes of cl.485.212(a) of the Regulations. In order to meet the requirement the applicant must meet an overall band score of 6 and a minimum score of 5 for each of the test components.

13. Documents provided to the Tribunal prior to the hearing included:

    ·Letter to Department from Allianz Global Assistance  and addressed to the applicant, dated 20/2/19 certifying health insurance coverage;

    ·Complete Disclosure check dated 18/1/19 certifying no discernible court outcomes

    ·IELTS test report form undertaken on 28/7/18 and signed 9/8/18;

    ·Monash University Masters of Environment and Sustainability issued 20/12/18;

    ·Passport extract.

14. The IELTS test results revealed that the applicant obtained the following satisfactory results;

    ·Listening 9

    ·Reading 8.5

    ·Writing 7.5

    ·Speaking 9

    ·Overall band score 8.5

    ·CEFR Level  C2

15. The Tribunal listed the matter for hearing on 22 July 2019. The applicant attended and gave evidence. The agent for the applicant, Mr Fernando, also attended the hearing.

16. The evidence given to the Tribunal was that on 28 July 2018 the applicant had undertaken an IELTS test and that on 9 August 2018 the results were recorded in test report form number 18AU001420MARR166G.

17. The IELTS test results before the Tribunal indicate that the applicant undertook the required language test and met the minimum band score to meet cl.485.212(a).

18. However, cl.485.212 requires that the application for the visa to the Department “be accompanied by evidence” that the applicant has undertaken and received the required score of the appropriate language test or holds a required passport. The Department had, on 10 April 2019, requested evidence that the applicant had an eligible passport or had undertaken the required English test. An emailed request was sent to the applicant’s agent to the email address provided in the application for the visa. The applicant was given 28 days in which to respond and failed to do so.

19. Following the hearing Mr Fernando sent to the Tribunal a statutory declaration  dated 26 July 2019,declaring that, in response to the Department of Home Affairs request on 10 April 2018 ( the Tribunal accepts that this date was meant to read 10 April 2019), he attempted to upload the file containing the test results but it was too large to process and sought the help of his assistant .He further declared that he travelled overseas on 18 April, returning on 6 May 2019 and attempted to complete the process of attaching documents to the immigration file. He was unsuccessful and confirmed that the failure to provide the document was an administrative error.

20. The courts have considered the meaning of the words “accompanied by” and stress that it is important that there be a “temporal connection” between the evidence and the application: Nguyen V MIBP [2016] FCCA 1523 and Anand v MIAC [2013] FCA 1050. In those cases the courts found the delay in lodging the required evidence (29 days in Nguyen and 5 months in Anand) following the making of the visa application, meant that there was no temporal connection with the evidence and the application.

21. However, despite the fact that the application to the Department was not accompanied by English proficiency test results it was accompanied by evidence, by way of the declaration within the application, that the applicant had successfully undertaken the relevant test and by provided the test result form number and date of the test within the visa application.

22. The Tribunal accepts that the English test was satisfactorily completed by the applicant within 36 months prior to the application being made and that through an administrative error the test results were not made available to the Department in the required time.

23. However, the Tribunal finds that the visa application was accompanied by evidence ( by way of the details in the declaration within the application) that the applicant had undertaken a language test specified in an instrument and had achieved, within the period specified in the instrument, the score specified so as to satisfy the requirements of cl.485.212(a).

24. On the basis of the above, the applicant meets the requirements of cl.485.212(a) of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.

    DECISION

25. The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:

    · cl.485.212 of Schedule 2 to the Regulations.

    Danielle Galvin
    Member