SAFI (Migration)

[2018] AATA 5346

SAFI (Migration) [2018] AATA 5346 (2 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Taufiqullah SAFI

CASE NUMBER:  1823034

DIBP REFERENCE(S):  BCC2018/2684187

MEMBER:Katie Malyon

DATE:2 November 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 02 November 2018 at 12:53 pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language test – IMMI 15/062 – test undertaken after visa application – absence of alerts or warnings during course of electronic application – unique or compelling circumstances – decision under review affirmed

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

CASES
Khan v Minister for Immigration & Anor [2018] FCCA 2854
Kumar & Anor v MIPB [2017] FCCA 2406

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, Afghani national Mr Taufiqullah Safi, a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. Mr Safi applied for the visa on 18 July 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 31 July 2018 because Mr Safi did not accompany his Subclass 485 visa application with evidence that he had undertaken a language test specified by the Minister and that he had achieved, within the 3 years prior to lodgement of his application, the specified score.  A copy of the delegate’s decision was provided to the Tribunal.

4. Mr Safi appeared before the Tribunal on 17 October 2018 to give evidence and present arguments.  He was represented in relation to the review by his recently 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 this case is whether Mr Safi satisfies cl.485.212 of the Regulations which requires that his visa application was accompanied by evidence that, either, he:

   ·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 4 test components (cl.485.212(a)); or,

   ·holds a passport of a type specified by the Minister in the instrument (cl.485.212(b)).

7. The relevant instrument specifying language tests, scores, the relevant period and passport types acceptable is IMMI 15/062.  

8. In the present case, documentation in the Department’s file, and as confirmed by Mr Safi at the hearing, he is a national of Afghanistan. There is no evidence that he has held a passport of a type specified in IMMI 15/062, that is, a passport from the United Kingdom, the United States of America, Canada, New Zealand or the Republic of Ireland. In the circumstances, cl.485.212(b) of Schedule 2 to the Regulations is not met. Therefore, Mr Safi 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 specified 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 4 test components and the overall test score:

   
   
   

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 his Subclass 485 online application form in relation to meeting English language requirements, Mr Safi responded ‘No’ 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? 

2. Furthermore, in response to the specific question on the penultimate page of the Subclass 485 visa application as to whether he had undertaken an English language test within the last 3 years, Mr Safi confirmed that ‘No’ he had not undertaken any such test.  He also did not complete requested details of the name and date of any such test, the test reference number or country where a test was undertaken. 

3. On 17 August 2018, the Tribunal wrote to Mr Safi pursuant to s.359(2) of the Act inviting him to provide evidence that his Subclass 485 visa application was accompanied by evidence that he met the English language requirements at the time of his visa application.

   Documentation lodged prior to the hearing

4. In response to the Tribunal’s s.359(2) letter, Mr Safi provided an IELTS result from a test undertaken on 4 August 2018 (that is, 2 weeks after he applied for his Subclass 485 visa) in which he scored 6.0 for Listening, 5.5 for Reading, 6.5 for Writing, 7.0 for Speaking with an Overall Band Score of 6.5.  These results confirm Mr Safi’s language skills as at 4 August 2018 exceed the minimum standard IELTS score required by IMMI 15/062.

   Hearing

5. Mr Safi provided the following documentation to the Tribunal at the hearing:

   1)a Diploma from the International School of Kabul certifying his graduation on 1 May 2014;  

   2)a Diploma from TAFE Queensland confirming he completed a Diploma of Business on 26 November 2015 together with a copy of his Academic Transcript for the Diploma; and,

   3)a Bachelor of Business (Management) testamur issued by the Queensland University of Technology on 25 July 2018.

6. At the commencement of the hearing and after outlining the law, the Tribunal observed that, based its examination of his Subclass 485 visa application - in which he responded ‘No’ to the question about whether he has undertaken a test in the last 3 years, he confirmed this later in his application and then did not support his application with any evidence of English test results - it was evident that Mr Safi’s Subclass 485 visa application was not accompanied by evidence that he meets cl.485.212(a) of Schedule 2 to the Regulations. The Tribunal also observed that he had responded ‘No’ to the question of whether he had applied in the last 12 months for an Australian Federal Police clearance and that, although the delegate made no comments or findings in relation to this in her decision, it would have been an alternative basis - or an additional basis - on which to refuse his application. Mr Safi acknowledged the Tribunal’s observations in this regard. The Tribunal explained to Mr Safi that it has no discretion and must apply the law. He indicated his acceptance of the Tribunal’s position and added ‘the law is the law’.

7. In his oral evidence, Mr Safi told the Tribunal that at the time he lodged his Subclass 485 visa application he did not have the benefit of professional advice.  He said he thought it was just another visa application and that, because he was allowed to continue with his application despite answering ‘No’ to the question about an English language test undertaken in the last 3 years, he thought he would be able to provide evidence of his English language skills after lodgement of the application: he just treated it like his earlier Student visa applications.  He added that, as a child, he grew up in Sudan, Egypt and Lesotho in Africa as well as in Afghanistan and always attended English speaking schools.  Furthermore, he spent 4 years in the United Kingdom and 4 years in the USA so he has always attended schools or tertiary educational facilities where the language of instruction was English. 

8. Mr Safi also told the Tribunal that would not be possible him to return to Afghanistan as the area that he comes from is constantly under attacked from Pakistan.  Further, his father is a former UN diplomat.  Mr Safi told the Tribunal that, because of his family’s background, he would be a target if he returned to Afghanistan.  Because of this, most of his family now lives overseas.  Mr Safi’s representative informed the Tribunal that he has discussed with his client the possibility of making a Protection visa application.  However, Mr Safi has indicated to him that he does not wish to proceed with such an application and that they are exploring all other options. 

   Consideration of evidence

9. On the basis of information in the Department’s file and as accepted by Mr Safi, the Tribunal finds that he does not meet either cl.485.212(a) or cl.485.212(b) of Schedule 2 to the Regulations. In the circumstances, Mr Safi 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.

10. The Tribunal observes that it is open to Mr Safi to make a request to the Minister pursuant to s.351 of the Act. This section provides a non-compellable, personal power for the Minister to intervene in an applicant’s case to grant them a visa where they have been the subject of an unsuccessful review application. Guidelines for cases which the Minister is likely to consider and where it is inappropriate are set out on the Department’s website:

11. In this regard, the Tribunal notes Mr Safi’s comments about being allowed to proceed with his application despite answering ‘No’ to the question in relation to meeting English language requirements (and the question in relation to whether he had applied for an Australian Federal Police check).  This topic has recently been the subject of comments in the Federal Circuit Court of Australia.  In the recent decision of Khan v Minister for Immigration & Anor [2018 ] FCCA 2854, Riethmuller J at paras [19] – [23] comments on the absence of a pop-up box that would give an applicant ‘a reasonable warning’ during the course of filling their electronic application so that they would be able to fix the problem (of not having necessary evidence available to accompany their visa application) before formally lodging their application.  Earlier, in Kumar & Anor v MIPB [2017] FCCA 2406, Driver J at [14] commented on the appropriateness of validation and the absence of a warning about the consequences of responding 'No' to questions in the online Subclass 485 application form. His Honour observes that the applicant in that case makes the 'reasonable point' that it would be ‘kinder to applicants and more efficient if the online form prevented applicants proceeding further once they entered a question in the negative’. His Honour opines on the ‘injustice, perhaps even absurdity, of being permitted to complete a visa application for which (an applicant) could not possibly qualify once they answered the question ‘no’ of whether a valid IELTS test result had been obtained within the 3 years preceding the application’. Driver J adds at [15] that ‘the result is an inflexible criterion that has harsh consequences’.

12. The Tribunal acknowledges Mr Safi’s observation that there was no validation prompt regarding his need to demonstrate he meets the English language requirement at the time of application.  However, the Tribunal does not have sufficient information before it to be satisfied that this case involves unique or compelling circumstances such that it would be appropriate for it to refer the matter to the Minister.  Nonetheless, it remains open to Mr Safi to make such a case to the Minister directly if he believes it is warranted. 

    DECISION

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

    Katie Malyon
    Member