Muparadzi (Migration)

[2020] AATA 3176

Muparadzi (Migration) [2020] AATA 3176 (9 June 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kudakwashe Chandafira Muparadzi

CASE NUMBER:  1930783

DIBP REFERENCE(S):  BCC2019/4199876

MEMBER:Simone Burford

DATE:9 June 2020

PLACE OF DECISION:  Perth

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

Statement made on 09 June 2020 at 11:08am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa – English test was not undertaken within the prescribed period – English language proficiency requirement not met – English test was undertaken after visa application was lodged – no discretion to waive English requirement –decision under review affirmed

LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, 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 applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958.

2. The applicant applied for the visa on 23 August 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 14 October 2019 because the applicant did not have the required English language proficiency.  The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.

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

5. The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.  The applicant did not raise any concerns regarding the telephone hearing. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

6. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

CONSIDERATION OF CLAIMS AND EVIDENCE

1. 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)).

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

3. The delegate’s decision records that when making the visa application the applicant answered “No” to the question:

   Do you hold a current passport from the USA, UK, Canada, New Zealand or the  Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English?

4. The Delegate’s decision also notes that the declaration form goes on to state:

Note: To meet the requirements for this visa you must hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland or have undertaken an English test within the last 36 Months that demonstrated you have at least competent English.

1. The delegate found that the applicant did not provide evidence that he held a passport of the type specified by the Minister. Therefore, the applicant did not satisfy 485.212(b). Before the Tribunal the applicant confirmed that he did not hold a current passport from any of the specified countries.  He testified he held a passport from Zimbabwe. The applicant provided a copy of his Zimbabwean passport, issued on 23 May 2019, to the Department.

2. 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).

3. The delegate’s decision records that when making the visa application the applicant declared in his application form that he had not undertaken an English language test in the 36 months prior to making the application nor did the applicant provide any evidence of having undertaken an acceptable English test in the 3 years immediately before the day on which the application was made.

4. The applicant has submitted evidence to the Tribunal, including a copy of his IELTS test results from 26 October 2019 which records he achieved an overall band score of 7.0.  material submitted to the Department included his academic qualifications including a Bachelor of Science from Murdoch University and an Associate Degree in Network Technology from South Western TAFE.

5. At the hearing the applicant set out the circumstances which led to him not meeting the English language requirement. He said it was a misunderstanding as he had thought as he had been studying in Australia for 5 years or more he would not have to take an English test.

6. The Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirement the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made.

7. The Tribunal explained to the applicant that the issue before it was whether he satisfies cl.485.212 which requires him to provide particular evidence as set out in the instrument.  It was not open to the Tribunal to find he met the English language requirement on some other basis including on the basis of another test taken after the application was made.

8. The Tribunal explained that regardless of any misreading on the part of the applicant as to the requirements for the visa, the law requires the applicant to have already taken an English language test by the time he made his visa application.  The Tribunal’s task is to determine whether the applicant meets the criterion.[1]

19.While the Tribunal has some sympathy for the applicant, the Tribunal explained that regardless of the reasons for not meeting these criterion, they must be met for the visa to be granted.  This includes the requirement the applicant has undertaken a specified English language test within the 36 months before submitting his visa application.  The Tribunal explained that it does not have any discretion to waive this requirement.[2]

[1] Analogous to decisions where the issue was misleading information on the application form, with respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285, Mohamed Farook v MIBP [2014] FCA 1017 at [55], and Kumar v MIBP [2014] FCA 1336 at [43].

[2] In Baig & Ors v MIBP [2018] FCCA 2986 (Dowdy J, 17 October 2018) the Court considered cl.485.212 and in particular the requirement in IMMI 15/062 that an English language test ‘must have been undertaken within the three years before the day on which the application was made’. The Court held that the language of IMMI15/062 provides no scope for consideration by the Tribunal of why an English test was not undertaken within the prescribed period.

1. The Tribunal accepts that the applicant has now undertaken a specified English language test – an IELTS English language test – and achieved the specified score.  However, as discussed with the applicant, the test was undertaken after the visa application was lodged.  It was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made.  The applicant has not provided the Tribunal with any evidence of having undertaken an English language test in the 36 months prior to lodging the visa application. The Tribunal is therefore not satisfied the visa 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.

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

3. 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

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

Simone Burford
Member