Rimal (Migration)

[2020] AATA 5897

Rimal (Migration) [2020] AATA 5897 (22 October 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Shreya Rimal

CASE NUMBER:  2006982

DIBP REFERENCE(S):  BCC2019/865001

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:        22 October 2020 at 4:57 pm (VIC time)

DATE OF WRITTEN RECORD:               8 December 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision under review.

Statement made on 08 December 2020 at 7:07pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – Post-Study Work stream – English language proficiency – test undertaken on same day as the visa application was made – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), Schedule 2, cl 485.212

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration on 20 March 2020 to refuse to grant the visa applicant a Skilled (Provisional) (Class VC) Subclass 485 visa under the Migration Act 1958 (the Act).

2. At the hearing on 22 October 2020, the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Ms Rimal, you applied for a 485 temporary graduate post-study working visa on the 13th of January 2020 A decision was made to refuse your application on the 20 March 2020.  The delegate found you didn’t meet the English language requirements for the grant of a visa.  An application was lodged for a review of that decision with this Tribunal.  Ms Rimal, you have told the Tribunal you did not apply to have the decision reviewed because you were unaware a decision had been made until October – you say the review application was lodged by your migration agent?

4. MS RIMAL:  That’s true. 

5. MEMBER:  Who paid the fee?

6. MS RIMAL:  He paid it, and it has been paid from his credit card.  I haven’t made any payment. 

7. MEMBER:  But the receipt for payment was sent to [email address].  Is that you?

8. MS RIMAL:  Yes. 

9. MEMBER:  Well you were sent the receipt, so you must have wondered what that was about.  However, the decision was appealed to be reviewed by this Tribunal, and the review application was accompanied by a copy of the primary decision, which you told the Tribunal you had read and understood.  It is apparent from our discussion today that you have read and understood it. 

10. To be eligible for the grant of a 485 visa, an applicant must satisfy a number of requirements set out in the regulations.  One of those is clause 485.212, which requires the application to be accompanied by evidence that the applicant achieved a satisfactory score in an English test undertaken in the three years before the date of the application, - or alternatively the applicant holds a passport of one of the nominated countries being the United Kingdom, the USA, Canada, New Zealand or the Republic of Ireland. 

11. When you filled in your application you answered “Yes” to the question about whether you had taken an English test in the last 36 months, and when I read from your decision record  provided with your review application, it says “the applicant lodged an online temporary graduate 485 visa application on the 13th of January.  In the application, the applicant answered “Yes” to the question do you hold a current passport from the USA, UK, Canada, New Zealand, the Republic of Ireland; or have you taken an English test within the last 36 months that demonstrates you meet the English requirements?.  The initial assessment was undertaken by a case officer on the 18th of March.  The applicant uploaded their Pearson Academic Test - PTE - on the 15th of January, which provided a test conducted on the 13th of January 2020, the same day the applicant lodged their temporary graduate post-study work visa application.  The English language requirement is one of the mandatory requirements that must be met at the time of lodging a 485 visa application, and as the applicant has not provided evidence of having done an acceptable English test within the three years immediately before the day on which the application was made, the applicant does not satisfy 485.212(a)(2).  Therefore, the delegate refused your application. 

12. We have discussed the requirements which are that the English test has to be taken in the period of three years before the day on which the application was made.  The application was made on the 13th of January, and so your test had to have been taken on or before 12 January.  As the test was taken on the 13th of January, it was not acceptable, despite the fact that your test results indicate that had they been taken in the acceptable timeframe you would have satisfied the English language requirements.  What was the PTE score that you achieved on the 13th of January?

13. MS RIMAL:  It was 72. 

14. MEMBER:  It was 72, which is certainly an acceptable score, however, the situation is that you have told the Tribunal that you were unaware that you were required to provide evidence of English at the time of the application.  You say that your agent did not tell you that.  You have further claimed that your agent did not advise you that your application had been refused until a couple of weeks ago in October 2020. 

15. MS RIMAL:  That’s true. 

16. MEMBER:  As I said, that seems a little unusual given the receipt on file indicates that the department sent the receipt for the payment of the application for - no, the Tribunal sent the receipt for application - oh no, I beg your pardon. 

17. MS RIMAL:  Sorry?

18. MEMBER:  I do beg your pardon.  The acknowledgement of the application for review of the decision was sent to your agent.

19. MS RIMAL:  Yes.   

20. MEMBER:  While the letter acknowledging the application was sent to your migration agent, the receipt for the payment of $1787 was sent to your personal email address which you have confirmed today and it and listed your address as [correspondence address]. 

21. However, you say the agent didn’t advise you of the decision until October this year, and you had no opportunity to do anything about it.  As I said to you, it is not the role of the Tribunal o consider the behaviour or performance of agents, but if the conditions are as you say they are, or the circumstances are, I think that you would be wise to take this matter further. 

22. You have provided evidence of your medical condition with letters from a medical centre and a doctor in July 2019 and from a psychologist in 2019, which provide some conflicting dates about when you were unwell.  However, there’s no question that the medical report says that you were unfit for work or study between 20 June 2019 and the 5 July 2019, and the psychologist reports that you have had ongoing treatment for depression, which is unfortunate.  However, the Tribunal does not believe that it is relevant to considerations of the matter at hand.  The role of the Tribunal is to consider whether or not you satisfy 485.212 of the regulations by having provided satisfactory evidence that you met the English language requirements.  It’s not a matter in which the Tribunal has discretion. 

23. As it stated in your decision, the English language requirement is one of the mandatory requirements that must be met at the time of lodging a 485 post-study work stream visa application. 

24. Your lack of knowledge that it was a requirement is not a satisfactory excuse.  The evidence you provided was that you had taken a test on the same day that you lodged the application.

25. As discussed, you took an English test on the same day you lodged your application. Because it is a requirement that the test be taken in the three years before the day on which you made the application, that test cannot be considered. 

26. Consequently, you do not satisfy the requirements, and therefore don’t satisfy 485.212(A)(1).

27. The evidence on file indicates that you travel on a passport from Nepal, so you do not have a passport from one of the designated countries, and therefore don’t satisfy 485.212(B). 

28. As you do not satisfy the criteria for the English language ability requirement described in 485.212 of the regulations, I find the criteria for the grant of a sub-class 485 temporary graduate visa in the post-study workstream are not met.  It is therefore the decision of this Tribunal to affirm the decision under review.  This decision was made at 4.57 pm, on this the 22 October 2020.  Thank you for your time here today, Ms Rimal.  This hearing is concluded. 

    DECISION

29. The Tribunal affirms the decision under review.

    Tim Connellan
    Member