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

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 a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. 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.

3. 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.

4. The applicant appeared before the Tribunal on 2 June 2020 to give evidence and present arguments.

5. The applicant was represented in relation to the review by his registered migration agent who also attended the hearing via telephone.

6. 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.

7. 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 we are going through a difficult time and in person face to face hearing is not allowable due to the COVID-19 Pandemic impact, we hope that the applicant will still be assessed fairly.

8. At the commencement of the hearing, the Tribunal asked the applicant about his concerns with the hearing being conducted via telephone.  In response, the applicant said he would prefer to appear in person, but he understood it may not be possible. The Tribunal also invited the representative to make submissions on the conduct of a telephone hearing and the representative indicated she understood the reasons for the telephone hearing and did not object to it.

9. The Tribunal assured the applicant that the Tribunal’s objective was to ensure a fair hearing.  The Tribunal indicated that it was confident given the nature of the matters to be assessed, and in particular the fact that issues of credibility are unlikely to be determinative, that the hearing could be fairly and effectively conducted by phone. However, the Tribunal also noted that should it appear at any point that the Tribunal could not proceed to determine the matter fairly based on the hearing by telephone, the matter could be adjourned to another day when another means of conducting the hearing was available.

10. The Tribunal notes that the hearing connection dropped out once during the hearing.  The applicant and his representative were quickly reconnected, and no further issues were experienced.

11. The Tribunal was satisfied that the applicant was given a fair opportunity to give evidence and present arguments during the hearing and no adjournment was required.

12. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

    CONSIDERATION OF CLAIMS AND EVIDENCE

13. 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)).

14. 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).

15. 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)?

16. 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.

17. 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).

18. 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.

19. 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.

20. The applicant’s registered migration agent also made written and oral submissions to the Tribunal.

21. 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.

22. The representative submitted, in written submissions dated 22 May 2020:

    Although there is no intention for the applicant to try to shift the blame in this matter, it is only fair for the applicant to be given the opportunity to explain of how this mistake was made. There seemed to be a confusion and misunderstanding of what to be provided by the applicant to meet his English criteria.

    The understanding of having completed a 5-year study in Australia where the courses were solely delivered in English gave the applicant the assumption that he has met the English criteria without having to complete an English Test such as IELTS or PTE and obtained the minimum score required for the purpose of the visa applied. Sadly, the confusion has caused the refusal of his visa application which we are confident would have otherwise been approved.

    Admitting the mistake made, Mr Revindran then took the English test on 21 January 2020 and without doubt he achieved an excellent result and should he has provided this evidence; we are confident that he would have met all criteria for the grant of the visa.

23. At the hearing, she submitted that she had advised the applicant the English test was mandatory, but he had acted on advice from elsewhere.  She asked the Tribunal to remit the matter for reconsideration on the basis of the information now available, including the test taken after the application was made. The Tribunal pointed out that it would be unable to remit the matter for reconsideration unless it was satisfied the criteria were met, which would include that there was evidence the specified test had been undertaken within the specified period – that is in the 36 months prior to the day the application was made.  Evidence that a test had been completed after the application was lodged would not assist the applicant in this regard, even if there were a basis on which to remit the application.

24. At the hearing, the Tribunal explained to the applicant the requirements of cl.485.212.  It explained that to meet the requirements, the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument, and had achieved, within the period specified in the instrument, the score specified.  It explained that the period specified is three years before the day on which the visa application was made.

25. The Tribunal explained that regardless of any misunderstanding about requirements on the part of the applicant, the law requires the applicant to have already taken an English language test by the time he made his visa application.  The Tribunal explained that it does not have any discretion to waive this requirement.

26. The Tribunal explained to the applicant that the issue before the Tribunal was whether he satisfies cl.485.212, which requires him to provide particular evidence as set out in the instrument.  The Tribunal’s task is to determine whether the applicant meets the criterion.[1]

    [1] Analogous to decisions where the issue was misleading information on the application form, with respect to the issue for the Tribunal, see Sandhu v MIBP [2013] FCCA 2285, Mohamed Farook v MIBP [2014] FCA 1017 at [55], and Kumar v MIBP [2014] FCA 1336 at [43].

27. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS test - and achieved the specified score.  However, it notes the test was undertaken after the visa application was lodged.  It was, therefore, not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made.  Accordingly, the Tribunal is not satisfied the visa application was accompanied by evidence that the applicant had undertaken a language test specified in an instrument, and had achieved, within the period specified in the instrument, the score specified.

28. As noted for the applicant at the hearing, in so finding, the Tribunal is not making an assessment of the applicant’s English language skills as that is not the question before the Tribunal. The question before the Tribunal is whether the applicant meets the requirements of cl.485.212.

29. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). 

30. 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

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

    Simone Burford
    Member