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

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).
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).
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.
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.
For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.
CONSIDERATION OF CLAIMS AND EVIDENCE
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)).
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.
In the present case, documentation in the Department’s file indicates that Ms Ramos is a national of the Philippines. There…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Ramos (Migration) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] AATA 5600
Decision Date: 26 October 2018

CaseChat Overview and Summary

This matter concerned an appeal by Ms Ramos against a decision affirming the refusal of her Skilled (Provisional) (Class VC) visa, Subclass 485. The appeal was heard by Katie Malyon in the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether Ms Ramos satisfied the English language proficiency requirements as stipulated by cl.485.212 of Schedule 2 to the Migration Regulations 1994. This clause requires applicants to either hold a passport from a specified country or provide evidence of achieving minimum scores in a designated English language test within a prescribed period.

The Tribunal considered that Ms Ramos, a national of the Philippines, did not hold a passport from the United Kingdom, United States of America, Canada, New Zealand, or the Republic of Ireland, thus failing to meet cl.485.212(b). Consequently, she was required to satisfy cl.485.212(a), which mandates evidence of an English language test taken within three years prior to the visa application, with specific minimum scores. While Ms Ramos indicated she had undertaken an Occupational English Language (OET) test on 13 January 2018 and uploaded results for tests taken on 2 September 2017 and 13 January 2018, the Tribunal found that the provided documentation did not demonstrate she achieved the specified minimum scores within the required three-year period preceding her application.

The Tribunal concluded that Ms Ramos had not met the English language proficiency requirements for the Subclass 485 visa. Accordingly, the decision under review was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision under review must be affirmed.CONSIDERATION OF CLAIMS AND EVIDENCE 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)). The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. 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. 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: 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). 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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.