Mohammed (Migration) - [2024] ARTA 842

Mohammed (Migration) [2024] ARTA 842 (26 November 2024)
Decision and
Reasons for Decision

Applicant: Mr Talhauddin Mohammed

Respondent: Minister for Home Affairs

Tribunal Number: 2211982

Tribunal: General Member G Hallwood

Place: Adelaide Registry

Date: 26 November 2024

Decision:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 26 November 2024 at 3:56pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – applicant completed university studies in Australia – impact of the COVID-19 pandemic on English testing - test within 3 years before the vias application – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

CASES

Baig v MIBP [2018] FCCA 2986
George v MICMSMA [2020] FCCA 2161

STATEMENT OF REASONS

APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicant, a 29-year-old national of the Republic of India, applied for the visa on 21 October 2021. 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 (Cth) (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 29 July 2022 because they were not satisfied that the applicant had the required English language proficiency.
The applicant appeared before the Tribunal on 19 November 2024 to give evidence and present arguments.
The applicant was represented in relation to the review although the representative did not attend the hearing.
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. Clause 485.212(1) 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(1)(a)); or
·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212(1)(b)).
Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2). Relevantly, for applications made on or after 20 January 2021 but before 1 July 2022, the applicant:

has not previously held a primary Subclass 476 visa granted on the basis that the applicant satisfied the primary criteria;
has not…

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: [2024] ARTA 842
Decision Date: 26 November 2024

CaseChat Overview and Summary

The case involved an applicant for a subclass 485 visa, commonly known as a Temporary Graduate visa. The applicant, who had completed their university studies in Australia, was subject to an English language requirement as part of the visa application process. The primary issue before the court was whether the applicant's English language proficiency test, taken during the COVID-19 pandemic, could be considered valid despite the restrictions that affected the availability of such tests. The applicant argued that the circumstances of the pandemic should have been taken into account when assessing the validity of the test results, which were conducted more than three years prior to the visa application.

The court considered the legal framework governing the English language requirement for the visa subclass and the administrative guidelines that the Department of Home Affairs had issued. The court examined the impact of the pandemic on English language testing and the extent to which these disruptions could be considered in the assessment of the applicant's eligibility. The central question was whether the circumstances of the pandemic constituted exceptional circumstances that warranted a departure from the strict three-year requirement for the English language test. The court held that while the pandemic presented significant challenges, it did not constitute exceptional circumstances that would justify extending the three-year period for the English language test. The court found that the applicant had not met the English language requirement for the visa application.

Consequently, the court affirmed the decision to refuse the visa application. The court concluded that the disruptions caused by the COVID-19 pandemic, while acknowledged, did not provide a sufficient basis to waive the three-year requirement for the English language test. The applicant's argument that the pandemic should have been taken into account was not accepted, and the decision to refuse the visa application was upheld. The court did not make any specific orders beyond affirming the original decision of the Department of Home Affairs.

Orders