Mustafa (Migration)

[2018] AATA 2431

Mustafa (Migration) [2018] AATA 2431 (6 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Kamal Saber Mustafa

CASE NUMBER:  1710565

DIBP REFERENCE(S):  BCC2017/1012464

MEMBER:Alison Mercer

DATE:6 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 06 June 2018 at 5:48pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – subclass 485 – English language proficiency – English test was undertaken after lodgement of 485 visa application – Decision under review affirmed

LEGISLATION
Migration Act 1958, ss 65, 351
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 (the Act).

2. The applicant applied for the visa on 14 March 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.

3. The delegate refused the visa on 2 May 2017 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and therefore had to demonstrate his English proficiency by providing evidence of having undertaken a specified English test in which he obtained the specified scores, within the specified period. The delegate found that the International English Language Testing System (IELTS) test provided by the applicant showed that he had achieved the specified scores but was undertaken on 30 March 2017, after the date on which he lodged his visa application. The specified period in which the test had to be undertaken was the 3 years immediately before the applicant made his visa application. The delegate found that the applicant therefore did not satisfy cl.485.212 and could not be granted a subclass 485 visa.

4. The Tribunal received a review application from the applicant on 17 May 2017. It was accompanied by a copy of the delegate’s decision, and an authority by which the applicant appointed a registered migration agent, Mr Mohiuddin Ahmed, as his representative and authorised recipient for correspondence. Also provided was a copy of the applicant’s IELTS Test Report form issued on 11 April 2017, indicating that he obtained an overall band score of 6.0 (with individual scores of 6.0 for listening, 5.5 for reading, 5.5. for writing and 7.0 for speaking) in a test he undertook on 30 March 2017.

5. On 23 March 2018, the Tribunal wrote to the applicant via his agent to invite him to a telephone hearing on 20 April 2018. He was asked to provide any additional material in support of his case, and the details of the English proficiency requirements for a subclass 485 visa were provided in the hearing invitation letter for his reference.

6. On 14 April 2018, the applicant’s agent provided a legal submission to the Tribunal, in which he made the following points (in summary):

   ·the applicant was denied natural justice, in that he booked the IELTS test he sat on 30 March 2017 before he lodged his subclass 485 visa application. Although he booked before the date of his visa application on 14 March 2017, the earliest test date available at that time was 30 March 2017;

   ·the applicant had completed a Master of Applied Science (Agricultural Science) at the University of Tasmania prior to this.  His student visa was about to expire so he had to rush to prepare his subclass 485 visa application and was unaware that any English test he provided had to have been sat in the 3 years immediately before he made the visa application;

   ·however, his IELTS results of 30 March 2017 provided that he had the required level of English proficiency and he deserved the opportunity to upskill himself that the grant of a subclass 485 visa would provide; and

   ·it was submitted that the original decision maker did  not accord procedural fairness to the application and thus erred in his decision.

7. The applicant participated in a telephone hearing with the Tribunal on 20 April 2018 to give evidence and present arguments. He told the Tribunal that his student visa was due to expire on 15 March 2017. It had originally been going to expire in October 2016 but it was extended to 15 March 2017 as the applicant had not completed all the research for his Masters degree by October 2016. The applicant said that he wanted to apply for a subclass 485 visa so that he could gain work experience in Australia in his scientific field. He tried to book an IELTS test before he made his visa application on 14 March 2017, but there were no test bookings available before that date, even on mainland Australia (he was based in Tasmania). He booked a test on 8 March 2017 but that test was on 30 March 2017 as there were no earlier dates available.  He travelled to Sydney to do the IELTS test on 30 March 2017. The fact that he could not sit a test before 14 March 2017 was outside his control. The applicant further stated that he was told by a friend that it would be OK for him to provide his IELTS test after he lodged his visa application. After he lodged his visa application, he heard nothing from the Department, until he received the refusal decision, which came as a shock.

8. In relation to his present circumstances, the applicant told the Tribunal that he is an Iraqi citizen from Kurdistan where he studied and worked in the field of agricultural engineering.  After completing his Masters in Agricultural Science at the University of Tasmania in 2017, he had an interview for a role involving scientific monitoring of beekeeping in north west Tasmania, which he was hoping to be able to take up, as he wished to gain useful experience in this field that he could use on his return to his home country or overseas.  

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)).

11. 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).

12. Based on the evidence before it, the Tribunal makes the following findings:

    ·the applicant applied for a subclass 485 visa online on 14 March 2017. In the online visa application, the applicant indicated that he had undertaken an English test on 8 March 2017; and

    ·the applicant undertook an IELTS test on 30 March 2017 in which he obtained an overall band score of 6.0 (with individual scores of 6.0 for listening, 5.5 for reading, 5.5. for writing and 7.0 for speaking).

13. 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 2 of IMMI 15/062 specifies that, for an IELTS, the required minimum overall score is 6 points, with a minimum of 5 for each of the 4 test components. The Tribunal is satisfied that the applicant’s IELTS test result of 30 March 2017 had an overall band score of 6.0 points, which equals the required score, and that his individual scores for each of the 4 test components exceed the required scores.

14. However, item 3 of IMMI 15/062 specifies that an IELTS test (or any of the other specified English tests) 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 14 March 2017 – between 13 March 2014 and 13 March 2017). The Tribunal finds although the applicant obtained the required scores in his IELTS test, this test was undertaken on 30 March 2017, after he made his subclass 485 visa application. Although he stated in his online visa application that he sat an IELTS test on 8 March 2017, the Tribunal is satisfied from his oral evidence at hearing that he did not in fact sit an IELTS test on that date, but booked the test he sat on 30 March 2017 on 8 March 2017.

15. The Tribunal is required to be satisfied that the applicant meets cl.485.212(a) in the way specified in IMMI 15/062. It has found that he did not, and cannot now do so due to the temporal limitation in item 3 of that instrument. The Tribunal has no discretion in the Act or Regulations to overlook or waive the combined requirements of cl.485.212(a) and IMMI 15/062. In this respect, the Tribunal is unable to agree with the submissions of the applicant’s agent that booking the test before the visa application was made satisfies cl.485.212(a), nor that the applicant’s IELTS test of 30 March 2017 could be used to meet cl.485.212(a). It is also unable to agree with the agent’s submission that there was any breach of procedural fairness in relation to this issue by the delegate. As discussed with the applicant at the hearing, the relevant law contains no discretion to waive or disregard cl.485.212(a) even where an applicant was unable to sit a specified English test in the relevant period because there were no test dates available.

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

17. 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.

18. The Tribunal notes that in the event of an unsuccessful review application, the Minister retains a personal power pursuant to s.351 of the Act to intervene to grant a visa to an applicant if the Minister considers that there are sufficiently unique or unusual reasons to do so. Guidelines for Ministerial intervention pursuant to s.351 of the Act are set out on the Department’s website.

19. The Tribunal notes that it remains open for the applicant and his agent to make a request to the Minister under s.351 if they believe the applicant’s circumstances meet these guidelines or otherwise present compelling circumstances.

    DECISION

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

    Alison Mercer
    Member