Revindran (Migration) - [2020] AATA 2868

Revindran (Migration) [2020] AATA 2868 (4 June 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Anand Revindran
CASE NUMBER:  2001578
DIBP REFERENCE(S):  BCC2019/4975713
MEMBER:Simone Burford
DATE:4 June 2020
PLACE OF DECISION:  Perth
DECISION:The Tribunal affirms the decision not to grant the applicant a Skilled (Provisional) (Class VC) visa.

Statement made on 04 June 2020 at 4:59pm
CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa– Subclass 485 (Temporary Graduate)) visa –English language proficiency requirement not met – English test was undertaken after visa application was lodged – no discretion to waive English requirement –decision under review affirmed
LEGISLATION
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212
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 4 October 2019. 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 16 January 2020 because the applicant did not have the required English language proficiency. The applicant provided a copy of the delegate’s decision record to the Tribunal with his application for review.
The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments.
The applicant was represented in relation to the review by his registered migration agent who also attended the hearing via telephone.
The Tribunal exercised its discretion to hold the hearing by telephone. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by telephone, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by telephone.
In response to the hearing invitation, the applicant’s representative stated in written submissions that:
While Mr Revindran is very grateful for the hearing invitation and has accepted to a hearing conducted by telephone, he prefers to appear before the Tribunal to give evidence and present his arguments in person face to face hearing to allow the Tribunal to consider all aspects of his evidence including body language , facial expressions demeanour and more in its assessment of the applicant’s credibility.
But considering…

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.

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Details

Case: [2020] AATA 2868
Decision Date: 4 June 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Revindran, an applicant for a Skilled (Provisional) (Class VC) visa, Subclass 485 (Temporary Graduate). The dispute centred on whether the applicant met the English language proficiency requirement for the visa.

The Tribunal was required to determine if the applicant satisfied clause 485.212 of the Migration Regulations 1994. This clause mandates that an application for the visa must be accompanied by evidence of either having undertaken a specified language test and achieved the required score within a specified period, or holding a passport from a country designated by the Minister.

The Tribunal found that the applicant did not meet the alternative requirement of holding a passport from a specified country, as he held a Singaporean passport. Regarding the English language test requirement, the applicant had undertaken an IELTS test after lodging his visa application, which was contrary to the requirement that the test be undertaken within a specified period prior to or at the time of application. The Tribunal noted that the applicant had been misinformed about potential exceptions to the English language testing requirement. As the applicant failed to meet the mandatory criteria under clause 485.212, the Tribunal affirmed the decision not to grant the visa.

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 decision under review should be affirmed.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 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. As such, the applicant must meet cl.485.212(a). The delegate’s decision records that when making the visa application, the applicant answered “No” to the following question: Do you hold a current passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English)? The delegate found that the applicant had not provided any evidence that he held a passport of a type specified by the Minister and therefore did not satisfy cl.485.212(b). Before the Tribunal, the applicant confirmed he did not hold a current passport from any of the specified countries. He confirmed he held a Singaporean passport. The applicant provided a copy of his Singaporean passport issued on 15 May 2019 to the Department. In the present case, the Tribunal finds that 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). The delegate’s decision also records that when making the visa application, the applicant declared in his application form that he had not undertaken an English language test in the 36 months prior to making the application. The applicant submitted evidence to the Tribunal including transcripts of academic records, academic awards, his confirmation of enrolment (CoE) and a copy of his English language test results from 21 January 2020. That record indicates that that the applicant undertook an International English Language Test System (IELTS) test on 21 January 2020 and achieved an overall band score of 8.5. The applicant’s registered migration agent also made written and oral submissions to the Tribunal. In written submissions and at the hearing, the applicant set out the circumstances which led to him not meeting the English language requirement. Before the Tribunal, the applicant said when he was applying, his sister told him that there was an exception to the rule for taking the test if you could show you studied in English. He said he googled this and found information but did not understand that the requirements had changed and the test was required. He said that when he realised this, after the application was submitted, he took the test and submitted the results.

Decision

Reasons for decision

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

Ratio Decidendi

Legal Principle Established

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