Rachuri (Migration) - [2019] AATA 2317

Rachuri (Migration) [2019] AATA 2317 (20 March 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Harish Rachuri
CASE NUMBER:  1834026
DIBP REFERENCE(S):  BCC2018/3260355
MEMBER:Jade Murphy
DATE:20 March 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 of Schedule 2 to the Regulations.
Statement made on 20 March 2019 at 1:23pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language test – accompanied by – almost two weeks after lodgement of online application – attempted to sit test prior to lodgement – booked the first available date – decision under review remitted
LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212
CASES
Anand v MIAC [2013] FCA 1050
Berenguel v MIAC (2010) 264 ALR 417
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

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).
The applicant applied for the visa on 29 August 2018. 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.
The delegate refused the visa on 5 November 2018 because the applicant did not have the required English language proficiency.
The applicant appeared before the Tribunal on 20 March 2019 to give evidence and present arguments.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)).
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI15/062. 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. As such the applicant must meet cl.485.212(a).
On 29 August 2018 the applicant lodged an online Subclass 485 visa application. In support of his English language capability, the applicant provided an English language test result from PTE Academic that was taken on 12 September 2018. The delegate refused the application on the basis that the test result from 12 September could not be considered as have accompanied the visa application on 29 August 2018.
At hearing, the applicant submitted that his visa was due to expire on 31 August 2018 and he was planning to leave Australia. The applicant stated that before that time, he had a job interview at an organization called Streat Ltd in Collingwood as an accounts receivable office worker and was notified that he was selected as the successful candidate on 19 August 2018. The next day, the applicant submitted he booked his PTE Academic English test and was told that the first date he could sit this test was 12 September 2018. The applicant provided evidence to the Tribunal of the email on 20 August 2018 in which he attempted to book the soonest available English test and was given the date of12 September 2018.
The Tribunal considers it reasonable that the applicant had attempted to sit the PTE Academic test before the date of application but had no choice but to take the sitting date of 12 September 2018.
In applying the regulations, the Tribunal relies on the decision in Anand v MIAC (Anand) which considered the meaning of ‘accompanied by’ in the requirement that the application is accompanied by evidence that the applicant has applied for an Australian Federal Police Check, the Federal Court was prepared to accept that evidence accompanying an application could be supplied after the application is lodged.[1] It held that there must still be a temporal connection with the application, and evidence supplied around the time of application may be sufficient. Further, while the court also distinguished Berenguel v MIAC (2010) 264 ALR 417, it held that it was not necessarily inconsistent with the purpose of requiring that the evidence be submitted at time of application, that the evidence is submitted after the visa application is lodged (at [27]).
[1] [2013] FCA 1050 (Katzmann J, 16 October 2013) at [28].
The Tribunal considers that the applicant had booked a time to sit the English skills test prior to lodging his online application and although he submitted the language certificate almost two weeks after the time of lodging, this can be considered within the meaning of “accompanied by” as held by the courts.
The Tribunal is satisfied that the application was accompanied by evidence that meets cl.485.212(a).
On the basis of the above, the applicant meets the requirements of cl.485.212 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
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.
Jade Murphy
Member

Details

AGLC: Rachuri (Migration) [2019] AATA 2317
Case: [2019] AATA 2317
Decision Date: 20 March 2019

CaseChat Overview and Summary

This matter concerned an appeal by an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485, against a delegate's decision to refuse the application. The applicant sought review of the delegate's decision before the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had satisfied clause 485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires that a visa application be accompanied by evidence of having undertaken a specified English language test and achieved the required score within a specified period, or alternatively, that the applicant holds a specified type of passport. The applicant had lodged their online application on 29 August 2018 and provided an English language test result taken on 12 September 2018.

The Tribunal reasoned that the applicant did not meet the alternative passport criterion. However, it considered the meaning of "accompanied by" in relation to the English language test requirement. Drawing on the Federal Court's decision in *Anand v MIAC*, the Tribunal held that evidence accompanying an application could be supplied after lodgement, provided there was a temporal connection with the application. The Tribunal found it reasonable that the applicant, whose visa was due to expire on 31 August 2018 and who had secured employment contingent on obtaining the visa, had attempted to book the earliest available English test after receiving a job offer. Despite the test being taken almost two weeks after the application lodgement, the Tribunal accepted the applicant's evidence of attempting to book the test on 20 August 2018 and being given the first available date of 12 September 2018.

Consequently, the Tribunal concluded that the applicant met the requirements of clause 485.212. The matter was remitted to the Minister for reconsideration of the remaining visa criteria.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.CONSIDERATION OF CLAIMS AND EVIDENCE 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)). The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI15/062. 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. As such the applicant must meet cl.485.212(a). On 29 August 2018 the applicant lodged an online Subclass 485 visa application. In support of his English language capability, the applicant provided an English language test result from PTE Academic that was taken on 12 September 2018. The delegate refused the application on the basis that the test result from 12 September could not be considered as have accompanied the visa application on 29 August 2018. At hearing, the applicant submitted that his visa was due to expire on 31 August 2018 and he was planning to leave Australia. The applicant stated that before that time, he had a job interview at an organization called Streat Ltd in Collingwood as an accounts receivable office worker and was notified that he was selected as the successful candidate on 19 August 2018. The next day, the applicant submitted he booked his PTE Academic English test and was told that the first date he could sit this test was 12 September 2018. The applicant provided evidence to the Tribunal of the email on 20 August 2018 in which he attempted to book the soonest available English test and was given the date of12 September 2018. The Tribunal considers it reasonable that the applicant had attempted to sit the PTE Academic test before the date of application but had no choice but to take the sitting date of 12 September 2018. In applying the regulations, the Tribunal relies on the decision in Anand v MIAC (Anand) which considered the meaning of ‘accompanied by’ in the requirement that the application is accompanied by evidence that the applicant has applied for an Australian Federal Police Check, the Federal Court was prepared to accept that evidence accompanying an application could be supplied after the application is lodged.[1] It held that there must still be a temporal connection with the application, and evidence supplied around the time of application may be sufficient. Further, while the court also distinguished Berenguel v MIAC (2010) 264 ALR 417, it held that it was not necessarily inconsistent with the purpose of requiring that the evidence be submitted at time of application, that the evidence is submitted after the visa application is lodged (at [27]).[1] [2013] FCA 1050 (Katzmann J, 16 October 2013) at [28].

Decision

Reasons for decision

On the basis of the above, the applicant meets the requirements of cl.485.212 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 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.Jade MurphyMember

Ratio Decidendi

Legal Principle Established

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