NWANZE (Migration)

[2018] AATA 2856

NWANZE (Migration) [2018] AATA 2856 (29 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Ikenna Theophilus Nwanze
Ms Chidimma Ogechukwu Asuzu

CASE NUMBER:  1725135

DIBP REFERENCE(S):  BCC2017/2856928

MEMBER:Katie Malyon

DATE:29 June 2018

PLACE OF DECISION:  Sydney

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

Statement made on 29 June 2018 at 1:01pm

CATCHWORDS
Migration – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – IELTS test after lodgement of visa – Completed more than one test – Academic performance – Interpretation of email from education provider – Competency of professional advice – 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 August 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. Criteria for 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 11 October 2017 because the first named applicant, Mr Ikenna Theophilus Nwanze, did not accompany his Subclass 485 visa application with evidence that he had undertaken a language test specified by the Minister and that he had achieved, within the three years prior to lodgement of his application, the specified score.

4. Mr Nwanze and his wife, the second named applicant Ms Chidimma Ogechukwu Asuzu,   appeared before the Tribunal on 16 May 2018 to give evidence and present arguments.    

5. For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in the present case is whether Mr Nwanze satisfies cl.485.212 of Schedule 2 to the Regulations which requires that the visa application was accompanied by evidence that either he:

   ·had undertaken a language test specified in an instrument and had achieved, within the period specified in the instrument, the score specified (cl.485.212(a)); or,

   ·holds a passport of a type specified by the Minister in an instrument (cl.485.212(b)).

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

8. In the present case, documentation in the Department’s file indicates that Mr Nwanze is a national of Nigeria. There is no evidence that he has held a passport of a type specified in IMMI 15/062, that is, a passport from the United Kingdom, United States of America, Canada, New Zealand or the Republic of Ireland. As such, cl.485.212(b) of Schedule 2 to the Regulations is not met. Therefore, Mr Nwanze must meet cl.485.212(a)
   of Schedule 2 to the Regulations.

9. Clause 485.212(a) of Schedule 2 to the Regulations and IMMI 15/062 require an applicant to accompany their visa application with evidence that they have undertaken one of five English language tests and achieved the specified score in the three years before lodgement of the visa application. IMMI 15/062 specifies the following minimum required scores for

   each of the test components:

   
   
   

English test	Minimum overall Score	Total overall score	Minimum scores for English test components
			Listening	Reading	Speaking	Writing
IELTS	6	-	5	5	5	5
OET	B	-	B	B	B	B
TOEFL iBT	-	64	4	4	14	14
PTE Academic	50	-	36	36	36	36
Cambridge English: Advanced (CAE) (taken on or after 1 January 2015)	169	-	154	154	154	154

1. Review of the Department’s file confirms that, in response to the question on the first page of his Subclass 485 online application form in relation to meeting English language requirements, Mr Nwanze responded ‘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 met the English language requirement) or have you undertaken an English test within the last 36 months that demonstrates you have met the English language requirement? 

   Text below this question states as follows:

   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 language test within the last 36 months that demonstrates you have met the English language requirement (emphasis added).

2. Furthermore, in response to the specific question on the penultimate page of the Subclass 485 visa application as to whether he had undertaken an English language test within the last 3 years, Mr Nwanze confirmed that ‘No’ he had not undertaken any such test.  He also did not complete requested details of the name and date of any such test, the test reference number or country where a test was undertaken. 

3. On 28 August 2017, more than 2 weeks after the visa applicant was lodged, Mr Nwanze provided the Department with evidence of an IELTS test undertaken on 12 August 2017 (that is, two days after lodgement of his Subclass 485 visa application) confirming that his score on each of the four test components and the overall band score exceeded the minimum test score.  Mr Nwanze did not dispute this at the hearing: rather, he explained to the Tribunal how this came about.  Essentially, it was due to his misunderstanding of advice in an email that he received from Kent Institute Australia (Kent Institute) where he completed his Bachelor of Business (Accounting) on 14 July 2017 about when his Student visa ceased and, further, advice received from a registered migration agent.  Mr Nwanze’s evidence in this regard is discussed further below. 

4. Based on information in the Department’s file, the Tribunal is not satisfied that Mr Nwanze’s Subclass 485 visa application was accompanied by evidence that he meets cl.485.212(a) of Schedule 2 to the Regulations. The Tribunal explained to Mr Nwanze that it has no discretion and must apply the law. Mr Nwanze indicated his acceptance of the Tribunal’s position.

5. On the basis of the above, the Tribunal finds that Mr Nwanze 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 must be affirmed.

6. The Tribunal must also affirm the decision not to grant a Subclass 485 visa application to the second named applicant Ms Asuzu as it finds that she is not a member of the family unit of a person who holds a Subclass 485 visa and thus does not meet the secondary visa criteria.  Furthermore, there is no evidence before the Tribunal to indicate that Ms Asuzu meets the primary visa criteria in her own right.

   Is this an appropriate case to refer to the Minister?

7. During the course of the hearing, Mr Nwanze told the Tribunal why he did not accompany his Subclass 485 visa application with evidence that he had undertaken a language test specified by the Minister in IMMI 15/062 confirming he had achieved, within the three years prior to lodgement of his application, the specified score.  Having regard to evidence provided, the Tribunal has considered whether this is an appropriate case to refer to the Minister to request exercise of his discretionary intervention powers.

8. Under s.351 of the Act, the Minister may substitute, for a decision of the Tribunal, a decision that is more favourable to an applicant if the Minister thinks it is in the public interest to do so. The Tribunal has no statutory obligation to consider whether a matter should be referred to the Minister for his consideration. The power under s.351 of the Act may only be exercised by the Minister personally. Furthermore, the power is non-compellable, in the sense that the Minister has no duty to consider whether to exercise the power when requested to do so by an applicant or another person, or in any other circumstances.

9. The Minister has issued guidelines explaining the circumstances in which he may wish to consider exercising his public interest powers under s.351 of the Act and cases that should be bought to his attention.[1]  Those guidelines indicate that the Minister will generally only consider exercising his public interest powers in cases which are referred to the Department following a decision by the Tribunal and which exhibit one or more unique or exceptional circumstances (emphasis added).  Relevantly, such circumstances include:

   ·exceptional economic, scientific, cultural or other benefit would result from the person being permitted to remain in Australia; and,

   ·circumstances not anticipated by relevant legislation; or clearly unintended consequences of legislation; or the application of relevant legislation leads to unfair or unreasonable results in a particular case.

   Hearing

   [1] >

   Mr Nwanze told the Tribunal that he arrived in Australia on 28 November 2014 and immediately commenced study at Kent Institute for his Bachelor of Business (Accounting).  He said he was well aware of the need to undertake an English-language test before expiry of his Student visa on 14 September 2017 and well before lodging his Subclass 485 visa application: it was an important step and so he had done a lot of research.  Aware of the requirements, he made a booking to undertake the test on 12 August 2017 and paid the application fee of $300.  A copy of an email confirmation from IELTS Test Booking Confirmation dated 7 July 2017 was provided to the Tribunal acknowledging payment of the application fee, confirming issue of a receipt numbered 2662367 and advising Mr Nwanze of details regarding the location and timing of the test at the Western Sydney University’s  Bankstown Campus on 12 August 2017. 

10. Then, at 1:27 pm on 26 July 2017, Mr Nwanze received an email from Kent Institute’s Student Services congratulating him on completing his course on 14 July 2017.  A copy of the email from Kent Institute was provided to the Tribunal.  The email states as follows:

    “CONGRATULATIONS ON COMPLETING YOUR COURSE!

    If you haven’t already applied for your completion letter and transcript, please complete the attached application form and email this to [email protected]. 

    Please note that your official Testamur will be made available in December as part of the Kent Institute Australia official graduation ceremony. 

    IMPORTANT INFORMATION

    It is important to note that your completion date is 14 July 2017.  This means that we inform the Department of Immigration and Border Protection (DIBP) that you have completed your studies on this date. 

    If your completion date of 14^th July is a month or more earlier than scheduled, your student visa will be valid for 28 days after 14^th July, regardless of your visa expiration date.

    In order to comply with your visa conditions you must either depart Australia within this time, or apply for another Australian Visa. 

    GRADUATE ATTRIBUTES SURVEY

    In approximately March next year, you will receive a survey from us which helps collect information about how our graduates progress in their careers.  It is really important we receive your survey responses so if your contact details change, please let us know so that we can still contact you, even if you are overseas. 

    Again, a big congratulations from the Kent Family!”  (Emphasis added)

11. Mr Nwanze told the Tribunal that, when he received the email on Wednesday, 26 July 2017 telling him he had to leave Australia within 28 days of 14 July 2017 or apply for another visa, he was shocked: it meant his Student visa would cease on Friday, 11 August 2017 and that was just over two weeks away.  He thought his Student visa was valid until 14 September 2017 - that’s what the Department indicated it when it granted his Student visa back in November 2014.  Having done his research on applying for a Subclass 485 visa, he had already made arrangements a week earlier, on 7 July 2017, to undertake his English language test on Saturday, 12 August 2017 in anticipation of applying for his visa once the results of his English language test were available in late August, well before he thought his Student visa expired on 14 September 2017. 

12. The Tribunal observed at the hearing that Departmental records confirm Mr Nwanze’s Student Subclass 573 visa was granted on 25 November 2014 and ceased on 14 September 2017.  Mr Nwanze told the Tribunal that he did not contact Kent Institute to check his understanding of the effect of its email.  He thought the email was saying his Student visa would expire 28 days after Friday, 14 July 2017: that is, on Friday, 11 August 2017.

13. Mr Nwanze said that, at this point, he did do some further research about the Subclass 485 visa and, as a result, realised that he needed to get some professional advice.  But, de did not have a lot of money and so sought advice from a registered migration agent by the name of Anna.  She charged $50 for a consultation fee.  Mr Nwanze told the Tribunal that Anna said he could lodge his application without the IELTS results as long as he was confident that he would get the required score.  At the hearing, Mr Nwanze provided a hard copy printout of text communications from his mobile phone with a person by the name of Anna

    which reads as follows:

    Wednesday, 9 August 2017

    Good day Anna, I wanted to lodge my visa application online today.  There is however a condition that I have the requirements for English. [10:13 a.m.]

    I will be writing my IELTS this Saturday.  My visa will expire next month.  But I finished my study on 14^th of July so 10 August makes it 28 days after. [10:15 a.m.] 

    Just wondering if it is still safe for me to wait till after my IELTS result before submitting my visa 485 application or if I should apply without IELTS. [10:17 a.m.]

    Hi Ikenna

    You can lodge the application without IELTS, as long as you are confident you will get the required score.

14. By way of summary, Mr Nwanze told the Tribunal that the context for his applying for his Subclass 485 visa application on Thursday, 10 August 2017 was based on advice from Kent Institute that his Student visa would expire on Friday, 11 August 2017 and aware that, although he was due to take his IELTS test on Saturday, 12 August 2017, the registered migration agent had advised him that he could lodge the visa application without the results of his IELTS test. 

15. The Tribunal observed that, despite the unfortunate situation in which he finds himself, it has no discretion and must apply the law.  Mr Nwanze acknowledged he did not go to the Department’s office or contact the Department about his understanding of Kent Institute’s advice regarding cessation of his Student visa within 16 days of receipt of the email from Kent Institute.  Rather, he sought advice from a registered migration agent who, clearly, gave him incorrect advice.  The Tribunal provided Mr Nwanze with a copy of the Tribunal’s brochure Immigration Assistance with details of the Office of Migration Agents Registration Authority where he can complain about the advice received from registered migration agent Anna.

16. Asked when he last did an English examination for immigration purposes, Mr Nwanze said he did a test on 17 May 2014 as part of his Student Subclass 573 application.  He told the Tribunal that, even then - three and a half years before he applied for his Subclass 485 visa - he scored 6.5 in each of the listening, reading, writing, speaking bands and overall.  In the circumstances, he has sat a required English test twice, and twice passed the test.  However, in the first instance, the test was done more than years before he applied for his Subclass 485 visa and, in the second instance, it was two days after he applied for the visa.  In any event, he acknowledged no evidence accompanied his Subclass 485 visa application of having passed the IELTS test.

17. Mr Nwanze told the Tribunal that he worked very hard during his studies in Australia at Kent Institute and was always among the best performing students in his class.  He was recognised in the Dean’s List for Outstanding Academic Performance in Trimester 2 of 2016 having achieved High Distinctions or Distinctions for Cost Accounting, Financial Reporting, Taxation Law and Auditing.  A copy of the letter from Kent Institute dated 22 December 2016 addressed to Mr Nwanze informing him of his inclusion in the Dean’s List was provided to the Tribunal.  The Tribunal found Mr Nwanze to be a genuine student.   

18. Questioned as to whether she had any comments, Mr Nwanze’s heavily pregnant wife told the Tribunal that the couple are expecting a baby in June 2018.  Ms Asuzu added that she, too, has been studying in Australia: she has studied Early Childhood Education at TAFE. 

19. By way of concluding comment, Mr Nwanze acknowledged that it is ‘too late now’ to try and fix the shortcomings of his Subclass 485 visa application.  He observed that he understands the Tribunal must affirm the delegate’s decision. 

    Consideration of appropriateness of referral to the Minister

20. Mr Nwanze has acknowledged that he did not accompany his Subclass 485 visa application with evidence that he had undertaken a language test specified by the Minister in

    
    

    IMMI 15/062 and that he had achieved, within the three years prior to lodgement of his application, the specified score.  The Tribunal accepts that it was the email from Kent Institute which Mr Nwanze misinterpreted and which prompted him to pre-emptively apply for a Subclass 485 visa without the benefit of the results of an English language test.  The inaccurate advice provided by registered migration agent Anna compounded the situation. 

21. The Tribunal has reviewed the records of the Department in relation to grant of Mr Nwanze’s Student visa.  His Confirmation of Enrolment confirms his Bachelor Degree of Business at Kent Institute would start on 10 November 2014 and end on 14 July 2017.  Accordingly, consistent with immigration policy, Mr Nwanze’s Student visa was granted to 14 September 2017.  Kent Institute formally notified him of his completion date of 14 July 2017 in its email of 26 July 2017 - this is identical to the scheduled completion date in his Confirmation of Enrolment.  In the circumstances, Mr Nwanze did not complete his degree “a month or more earlier than scheduled” and, as a result, the scenario contemplated in bold text at para [20] above did not apply to Mr Nwanze.  For clarity, the Tribunal observes that there was no basis for Mr Nwanze to assume that his Student visa would cease 28 days after 14 July 2017 as he did not complete his degree earlier than scheduled: this was a misunderstanding on his part.  His Student visa, which was valid to 14 September 2017, was granted on the basis that he would complete his degree on 14 July 2017. 

22. While the Tribunal acknowledges that Mr Nwanze has professional qualifications in Accounting from Australia (as well as qualifications in Chemical Engineering from Nigeria) and that he has since demonstrated that he has the prescribed English language skills, it is not persuaded that this constitutes exceptional economic, scientific, cultural or other benefit to Australia in the absence of any other distinguishing achievements. Nor does his case present circumstances not anticipated by the legislation, or clearly unintended consequences of the legislation and nor does the application of the legislation lead to unfair or unreasonable results in his particular case. The Tribunal considers that the legislation in this area, including both cl.485.212 of Schedule 2 to the Regulations and IMMI 15/062, is clear and unambiguous. On balance, the Tribunal has decided not to refer the matter to the Minister under s.351 of the Act.

1. Nevertheless, the Tribunal notes that Mr Nwanze did not have the benefit of competent professional advice at the time of lodgement of his Subclass 485 visa application: nor did he seek advice when he received the delegate’s decision refusing his visa application.  He now has a copy of the Tribunal’s brochure Immigration Assistance with information of where he can seek professional immigration assistance including pro bono advice regarding visa options for Australia including, if he so chooses and if considered appropriate, a possible application to the Minister under s.351 of the Act.

   DECISION

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

   Katie Malyon
   Member