Ramos (Migration)

[2018] AATA 5600

Ramos (Migration) [2018] AATA 5600 (26 October 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Joanna Ramos

CASE NUMBER:  1808323

DIBP REFERENCE(S):  BCC2018/865745

MEMBER:Katie Malyon

DATE:26 October 2018

PLACE OF DECISION:  Sydney

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

Statement made on 26 October 2018 at 11:42 am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 – English language proficiency requirements – did not achieve specified scores within the prescribed 3 year period – not referred for Ministerial intervention – decision under review affirmed

LEGISLATION
Legislation Act 2003
Migration Act 1958, ss 65, 351, 359(2)
Migration Regulations 1994, Schedule 2, cl 485.212(a)

CASES

Kumar v DIBP [2018] FCA 140

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, Philippine national Ms Joanna Ramos, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Ms Ramos applied for the visa on 23 February 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).

3. The delegate refused the visa on 20 March 2018 because, although Ms Ramos accompanied her Subclass 485 visa application with evidence that she had undertaken a language test specified by the Minister within the 3 years prior to lodgement of her application, the results provided to the Department do not confirm that she had achieved the specified scores within the prescribe 3 year period.  A copy of the delegate’s decision was provided to the Tribunal.

4. Ms Ramos appeared before the Tribunal on 19 October 2018 to give evidence and present arguments.  She was represented in relation to the review by her newly appointed registered migration agent, who also attended the hearing.   

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 Ms Ramos satisfies cl.485.212 of Schedule 2 to the Regulations which requires that the visa application was accompanied by evidence that either she:

   ·has undertaken a language test specified by the Minister in a legislative instrument and has achieved, within the period specified, at least the minimum overall test score and the minimum required scores for each of the test components (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 Ms Ramos is a national of the Philippines. There is no evidence that she 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, Ms Ramos 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 at least the specified scores within the 3 years before the day on which their visa application was made.

   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 her Subclass 485 online application form in relation to meeting English language requirements, Ms Ramos responded ‘Yes’ 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 she had undertaken an English language test within the last 3 years, Ms Ramos confirmed that ‘Yes’ she had undertaken an Occupational English Language (OET) test in Australia on 13 January 2018 and provided the test reference number.  She also uploaded a Statement of Results dated 9 February 2018 for OET tests undertaken on 2 September 2017 and 13 January 2018. 

3. The Tribunal notes in passing that the website for OET states that it specialises in providing English language tests for healthcare professionals in 8 countries including the UK, Ireland, Australia, New Zealand and Singapore.[1]  Further, it states that it uses real healthcare scenarios and is used as proof of English proficiency for registration in the healthcare sector. 

   [1] >

   As noted in the delegate’s decision, in her OET test undertaken on 2 September 2017, Ms Ramos she scored B for Listening, C for Reading, C for Writing and B for Speaking.  For her test undertaken on 13 January 2018, she scored B for Listening, B for Reading, C+ for Writing and C+ for Speaking.  In the circumstances, she did not receive a score of at least B in each of the 4 test components in a test undertaken in the 3 years immediately preceding lodgement of her Subclass 485 application: accordingly, the delegate found she did not meet criteria.

4. On 17 August 2018, the Tribunal wrote to Ms Ramos pursuant to s.359(2) of the Act inviting her to provide evidence that her Subclass 485 visa application was accompanied by evidence that she met the English language requirements.

   Documentation lodged prior to the hearing

5. In her response to the Tribunal’s letter, Ms Ramos’ provided the following:

   1)a statement which in which she says she checked the requirements for an English language test for her Subclass 485 visa application prior to lodging the application.  She added she did not have the benefit of professional advice and only researched and compared the OET test results (which she already had) to other tests results that are specified.  Ms Ramos also provided an extract from the OET website which compares OET and IELTS English language test scores.[2]  The OET website extract provided states that a C+ OET grade is equivalent to a 6.5 for IELTS: that is, a C+ OET grade is above the minimum requirement of 5 for IELTS as set out in IMMI 15/062.  It was on this basis that she concluded her OET score of C+ is acceptable; and,

   2)a Statement of OET Results dated 12 April 2018 confirming that, in addition to the test results provided to the Department, Ms Ramos has undertaken a further test on 10 March 2018 (that is, 3 weeks after she lodged her Subclass 485 visa application) in which she scored the minimum required OET scores of B for Listening, B for Reading, B for Writing and B for Speaking.

   [2] >

   Ms Ramos also indicates in her response to the Tribunal’s invitation made pursuant to s.359(2) of the Act that she has used her OET test results to secure her registration with the Australian Health Professional Registration Authority (APHRA) following completion of her Bachelor of Nursing at the University of Technology, Sydney. 

6. Prior to the hearing, Ms Ramos’ newly appointed representative provided a detailed submission together with the following documentation:

   1)the Statement of OET Results dated 12 April 2018 referred to above at para [15]; 

   2)IELTS test results dated 6 December 2014 (that is, 3 years 2 months before she applied for her Subclass 485 visa) in which she scored 7.5 for Listening, 6.5 for Reading, 6.0 for Writing, 7.0 for Speaking with an Overall Band Score of 7.0.  These results confirm Ms Ramos’ English language skills exceeded the minimum standard of IELTS 5 required by IMMI 15/062 more than 3 years before she applied for her Subclass 485 visa; and,

   3)a letter from Ms Ramos in which she acknowledges she ‘made a genuine mistake’ because she completed the application on her own and ‘did not have enough knowledge regarding the visa application’. 

7. In his submission, Ms Ramos’ representative acknowledges that his client does not meet the English language requirement consistent with cl.485.212 of Schedule 2 to the Regulations and IMMI 15/062. However, he requests the Tribunal recommend the matter for ministerial intervention pursuant to s.351 of the Act on the basis that she would have met the English language requirements if her application had been lodged a few weeks earlier: further, she would have also met the requirements if the application was lodged 4 weeks later.

   Hearing

8. At the hearing and after outlining the law, the Tribunal observed that, based on information in the Department’s file, it was evident that Ms Ramos’ Subclass 485 visa application was not accompanied by evidence that she meets cl.485.212(a) of Schedule 2 to the Regulations. The Tribunal also explained to Ms Ramos that it has no discretion and must apply the law. She indicated her acceptance of the Tribunal’s position in this regard.

9. The Tribunal acknowledged Ms Ramos’ evidence that she relied on the representation as set out in the OET website regarding the equivalence of her OET test results to IELTS test results.  However, it reiterated it has no discretion and must apply the law.  It also observed that IMMI 15/062 clearly specifies the minimum score required for each of the prescribed English language tests and that OET’s representation of equivalence of its test scores to other scores can have no bearing on the Tribunal’s assessment of whether she meets relevant legislative criteria. 

10. Ms Ramos provided the Tribunal with a letter from the Clinical Manager of her employer, Gallipoli Home, which confirms she has been working as a registered nurse with the business since July 2018. The Clinical Manager states that Ms Ramos is very hard-working, honest and well-liked by residents of Gallipoli Home as well as her colleagues and management. Furthermore, the Clinical Manager notes Gallipoli Home often receives positive feedback from both residents and their families about Ms Ramos’ professionalism and her caring behaviour. Ms Ramos formally requested the Tribunal refer her matter to the Minister pursuant to s.351 of the Act. She.

    Consideration of evidence

11. On the basis of information in the Department’s file, the Tribunal finds that Ms Ramos 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.

    Is this an appropriate case to refer to the Minister?

12. As indicated above, Ms Ramos and her representative requested the Tribunal refer this matter to the Minister for his personal intervention. 

13. The Tribunal notes that s.351 of the Act gives the Minister a personal, non-compellable power to replace a decision of the Tribunal with a decision that is more favourable to an applicant if the Minister thinks that it is in the public interest to do so. Guidelines on the types of unique or exceptional circumstances in which a case might be referred by the Tribunal to the Minister for consideration were published by the Minister of 29 March 2016 and are set out on the Department's website, as are guidelines on cases which it is considered that it would be inappropriate for the Minister to consider intervening:

14. The guidelines published by the Minister on unique or exceptional circumstances include: compassionate circumstances regarding an applicant’s health that, if not recognised, would result in serious, ongoing and irreversible harm and continuing hardship; exceptional economic, scientific, cultural or other benefit that would result from an applicant being permitted to remain in Australia; and, circumstances not anticipated by the relevant legislation, or clearly unintended consequences of the legislation, or where the application of the relevant legislation leads to unfair or unreasonable results in a particular case.

15. Ms Ramos’ representative submits that, in this case, the application of the relevant legislation leads to an unfair or unreasonable result.  The representative observes that Ms Ramos would have met the English language requirements if an application had been lodged a few weeks earlier, or 4 weeks later.  He concludes that, despite the fact that Ms Ramos technically does not meet the English language requirement at the time of her visa application, practically speaking it would be unfair not to grant her a Subclass 485 visa application on the basis of unsatisfactory English language skills. 

16. While the Tribunal acknowledges that Ms Ramos has professional qualifications in Nursing from Australia, is currently employed in that occupation with Gallipoli Homes, her employer has provided a letter confirming that she is a valued employee and, further, she has demonstrated that she had better than the minimum prescribed IELTS English language scores in a test undertaken 2 months prior to the 3 year period before the day on which she lodged her Subclass 485 visa application and met the OET minimum scores 3 weeks after lodgement of her application, it is not persuaded that these circumstances constitute exceptional economic, scientific, cultural or other benefit to Australia in the absence of any other distinguishing achievements. 

17. Further, the Tribunal does not accept that, as argued by her representative, application of the legislation leads to an unfair or unreasonable result in Ms Ramos’ case, absent of any other unique or exceptional circumstance. The Tribunal considers that the legislation, including both cl.485.212 of Schedule 2 to the Regulations and IMMI 15/062, is clear and unambiguous: further, its consequences cannot be said to be unintended. The current provisions of the Regulations in relation to English language requirements for Subclass 485 visa applicants were tabled in the Australian Parliament and have been part of the law since 28 March 2013. Further, IMMI 15/052 has been in place since 16 April 2015 when the legislative instrument was prescribed by the Minister: it has the force of law by virtue of the Legislation Act 2003.  In addition, the law in this area has been the subject of judicial consideration in both the Federal Circuit Court of Australia as well as the Federal Court of Australia.  Earlier this year, Robertson J of the Federal Court in Kumar v DIBP [2018] FCA 140 at para [24] found that there is no ambiguity in the terms of either cl.485.212 of the Regulations or IMMI 15/062.

18. On balance, the Tribunal has decided not to refer the matter to the Minister under s.351 of the Act. Nonetheless, it remains open for Ms Ramos to request the Minister to consider intervening in her case if she believes that her circumstances meet the Ministerial guidelines.

    DECISION

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

    Katie Malyon
    Member