Shrestha (Migration)

[2024] AATA 3695

Shrestha (Migration) [2024] AATA 3695 (23 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Bibek Shrestha

REPRESENTATIVE:  Mr Swadesh Jaiswal (MARN: 1575428)

CASE NUMBER:  2210612

HOME AFFAIRS REFERENCE(S):          BCC2021/1600193

MEMBER:Alan McMurran

DATE:23 August 2024

PLACE OF DECISION:  Sydney

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

Statement made on 23 August 2024 at 2:22pm

CATCHWORDS 
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Graduate Work stream – applicant did not have the required English language proficiency – English tests were undertaken after he lodged his visa application – test was not undertaken by the applicant in the 3 years before the day on which the visa application was made – Ministerial intervention – decision under review affirmed  

LEGISLATION
Migration Act 1958, ss 65, 351
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 Home Affairs to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa[1] in the Graduate Work stream, pursuant to s 65 of the Migration Act 1958 (Cth) (the Act).

   [1] Subclass 485 -Temporary Graduate

2. The applicant, Mr Bibek Shrestha, a 26-year-old citizen of Nepal, applied for the visa on 17 August 2021. 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.)

3. The criteria for the grant of a Subclass 485 visa are set out in Schedule 2 to the Migration Regulations 1994 (Cth) (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. There are no additional family members with this application.

4. The delegate refused the visa on 7 July 2022 because the applicant did not provide evidence that he had successfully completed an acceptable English test within 3 years immediately before the day on which his application was made and therefore subclause 485.212(1)(a) of the Regulations was not met.

5. The applicant appeared in person before the Tribunal in Sydney on 19 August 2024 to give evidence and present arguments. The applicant was represented in relation to the review. The representative also attended the hearing and made submissions.

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

CONSIDERATION OF CLAIMS AND EVIDENCE

1. The Tribunal has available for consideration the Department file, the applicant’s Tribunal file, relevant provisions in the Act and Regulations, the applicant’s submissions and his oral evidence, and reference to relevant court decisions and Policy guidance.

2. The issue in the present case is whether the applicant satisfies the requirements in cl 485.212 of the Regulations at the time of decision. All requirements in the relevant Regulations must be met and there is no discretion to waive any of the criteria. If one criterion is not met, the Tribunal is not required to review any remaining criteria.

3. Clause 485.212 requires that the application was accompanied by evidence that:

• 485.212(1)(a)(i) - the applicant has undertaken a language test specified in a legislative instrument[2]; and

• 485.212(1)(a)(ii) - has achieved, within the period specified in the instrument[3], the score specified[4] with the required minimum overall test score, and the minimum required scores for each of the test components; or

• 485.212(1)b) - the applicant holds a passport of a type specified by the Minister in an instrument.

  [2] IMMI 15/062

  [3] IMMI15/062 at par 4.

  [4] PTE requires a minimum overall score of 50

1. The applicant does not claim to hold a passport of a type specified by the Minister in the relevant instrument[5].

   [5] IMMI 15/062 at par 6 – passport for UK, USA, Canada, NZ or Irish Republic

2. Furthermore, cl 485.212 does not apply to an applicant who meets the requirements of cl 485.232 or 485.233.[6] The applicant does not claim to meet those requirements, and there is no evidence that he has applied for a second Subclass 485 visa, and the provisions of cl 485.232 and cl 485.233 are not applicable in this case.

   [6] cl 485.212(2).

3. As such the applicant must meet cl 485.212(1)(a).

4. Subclause 485.212(1)(a) requires him to provide evidence that he has undertaken a specified English language test within the relevant period[7], and obtained the requisite score.

   [7] The instrument provides for the test to be taken 3 years before the day on which the application is made.

The Hearing – 19 August 2024

1. The applicant attended the hearing with his representative and confirmed his personal details from the application form. The form was completed by the applicant with the assistance of a migration agent in Sydney, who was not the representative assisting the applicant for the hearing.

2. The applicant arrived in Australia in early 2017 on a student visa. In Australia, he obtained a Diploma of Information Technology from the Australian College of technology in Sydney, where he studied from 15 January 2018 to 23 November 2018. He then obtained an Advanced Diploma of Information Technology from the same college where he studied from 14 January 2019 until 28 June 2019. He then obtained an Advanced Diploma of Telecommunications Network Engineering from Abbey College in Sydney where he studied from 8 July 2019 until 4 July 2021. His occupation in the application form is the ANZSCO code 313213 for a Telecommunications Network Planner and which is clearly related to his Australian studies.

3. He said that he had been advised to lodge his application for his Graduate 485 visa even though he had not yet sat for his English test, because his student visa was shortly to expire. He said he was told that provided he had arranged to sit for the test before he lodged the application he would be “okay”.

4. This was because there was a statement issued from the Department in 2021 and on the Department of Home affairs website at the time and which had been circulated to migration agents stating that students with visas shortly to expire and who had been unable to obtain an English test result delayed because of COVID-19 “impacts”, should still proceed to lodge their Subclass 485 visa application, which would then not be assessed until they had provided evidence of meeting the English language assessment requirement.

5. On receiving that advice, the applicant answered the question in the application as to whether he had undertaken an English test in the last 36 months, stating “no”, and intending to lodge his language assessment result shortly afterwards. He said he had provided his then representative with a copy of a receipt evidencing payment for a PTE English test booked for Tuesday, 28 September 2021.

6. At the hearing, the applicant said he had learned afterwards that his representative had not lodged the evidence of receipt for booking his English language test, at the time of lodging the visa application. He said that if he had known beforehand this was the case, he would not have lodged the form at that time because he had not provided the Department with the relevant evidence of having booked an English language test and in order to delay the assessment of his application. On its face, the application states he has not met the requirement and provides no reason for delaying assessment.

7. The applicant has provided the Tribunal with a copy of his receipt for a PTE test which evidences that by 16 August 2021 he had booked and paid for the test and before lodgement of his application.

8. He has also submitted a copy of the official circular from the Department of Home affairs around that time which states in full:

“Thank you for your enquiry regarding the English language requirement for the temporary graduate (subclass 485) visa. At this time the English language criterion remains a time of application requirement. The Department is aware there have been ongoing issues with being able to physically sit a test in an accredited provider’s centre and is continuing to look at options in line with the guiding principle of no disadvantage to clients based on COVID-19 impacts or issues with obtaining information from third party providers.

If you have a student graduate who intends to apply for a temporary graduate visa but is unable to obtain an English test result because of COVID-19 impacts on English language testing sites, and a student visa is due to expire, please proceed to lodge their application before the expiry of their visa. The assessment of their visa application will proceed only after evidence is provided they meet the English language requirement and after the Department has confirmed a solution.

Please continue to monitor the Department of Home affairs website for updates to eligibility requirements.”

1. The applicant further submitted details of the provider deferring his booked test on two occasions from Tuesday, 28 September 2021, until he was able to sit for and achieve a positive test result at his first attempt on 22 February 2022.

2. The applicant said at the hearing that many of his student colleagues who had been in the same position and had lodged their applications without providing evidence of completion of a successful English language test at the time of lodgment, had subsequently been assessed after lodgement and had been granted the visa. He assumed that was because they had provided evidence of having booked for a test and a test outcome, whereas he had not, and therefore his assessment was not dealt with the same way.

3. There is no evidence before the Tribunal that the Department attempted to contact the applicant about an English test on receipt of his lodged application. Nor is the applicant aware of any contact with his former representative or from the representative to the Department concerning the provision of evidence of a booked English language test at the time of lodgment. The Department information shows a delay from 17 August 2021 at lodgement until 7 July 2022 being the time of decision. There is no evidence from the Department information that the applicant’s successful test result obtained on 22 February 2022 was ever submitted, notwithstanding that the Department did delay its decision for a considerable period and for some months after the test result had already been obtained.

4. There is no evidence, however, as to why the Department did delay for such a lengthy period other than perhaps for COVID-19 related delays for completion of Department work and assessment generally.

5. The applicant did not contest in his oral evidence that he has not met the mandated requirement within 3 years before the day on which the application was made. He said he understood now why his application had been refused as no evidence had been provided on his behalf for the successful completion of the test and before his application was assessed. He submitted that he believes the fault was that of his then representative whom he holds responsible. He argued that the outcome was the result of something beyond his control, namely, the action of his representative. He submitted that he had done all that was required of him at the time, including booking for a relevant test and then taking the test at the first opportunity and achieving a successful result. He said he genuinely believed that because he had provided evidence in the form of the receipt for payment and booking the test, that it would be enough to meet the Department’s delayed processing requirements.

6. The representative submitted that although the applicant has not met the criterion, and which is not disputed, that the Tribunal should have regard to the circumstances beyond the applicant’s control and that it should find the applicant met the criterion at the earliest opportunity after lodgement, and but for the failure to provide evidence, firstly of the booking and then the test result itself, the criterion was met at the time of the delegate’s decision and in accordance with the Department’s then processing policy.

7. The representative submitted that although there was no relevant COVID-19 legislative instrument specifically avoiding the mandated requirement for the English test, so as to waive or postpone the requirement, the Tribunal should have regard to the Department’s own Circular at the time, and the Department ought not to have assessed the applicant for the criterion in the circumstances here where there was a successful test result obtained before the delegate’s decision.

8. The Tribunal asked the applicant why he had not sat for the test in the relevant three-year period between 17 August 2018 and 16 August 2021, up to the day immediately before lodgement. The applicant responded that he had been busy with his studies which he did not complete until July 2021. He said while studying he “did not have time to prepare for the test”, but had actually booked a test on 16 August 2021, being the last day for him to do so before lodgement.

Consideration

1. The Tribunal has listened carefully to the oral evidence and submissions and had regard to all the available information and finds as follows.

2. The mandated requirement is to obtain and submit an English language test result undertaken within 3 years before the day on which the application is made.

3. Notwithstanding that the statutory criterion was not amended or altered during the COVID-19 pandemic, so as to waive or vary the time requirement for completing the test, the Department made clear its intention not to prejudice applicants for the Subclass 485 visa when failing to meet the temporal requirement because of matters beyond their control. So much is clear from the submitted contemporary Department circular.

4. This included making arrangements with third party providers who were constrained as to the numbers of persons sitting for tests, and the locations, because of mandated COVID-19 restrictions, and which prevented applicants being able to complete the test at the time of lodgment.

5. The Tribunal is satisfied however this did not include applicants who had either not booked a test at the time of lodgement, or applicants who may have booked a test but did not submit a successful test result even though assessment of their application had been deferred.

6. The applicant’s evidence is not altogether clear. For example, he expressed his uncertainty whether the evidence in the form of his emailed receipt from the provider that he had booked a test on 16 August 2021 had been submitted. The information from the Department available to the Tribunal does not indicate the booking receipt from 16 August 2021 was ever provided to the Department.

7. Notwithstanding, the Department waited from the time of the applicant’s lodgment on 17 August 2021 until 7 July 2022 to make its assessment and during which period at any time either the applicant himself or the representative could have updated the Department with the test and the result. There is no evidence to explain why the applicant’s successful test result on 22 February 2022 was not made available to the Department, some months before the delegate’s decision.

8. Although the applicant blames his former representative for not communicating information to the Department, the applicant ultimately must take responsibility for what is done on his behalf by his authorised representative. The Tribunal can find no fault in the timeline in this case at the feet of the Department for not considering appropriate information. The fact is the information was not made available. Had it been done so, it is likely the application would have been approved as the applicant notes was done for other colleagues of the applicant.

9. The Tribunal finds that the applicant did not submit evidence of a successful English language test undertaken within 3 years before the day on which he made the application. The fact that he obtained a successful language test result in February 2022, some months after lodgement and delayed because of COVID restrictions, does not assist him for 2 reasons. Firstly, because the information was not provided to the Department, and secondly, because the Department, perhaps by default, had deferred its assessment in line with its contemporary policy until well after the applicant had successfully completed the test.

Summary

1. The Tribunal has considered the submission that these were matters beyond the applicant’s control. The Tribunal rejects that submission. At all times, the applicant was represented and is responsible for what was done on his behalf, notwithstanding that what was done may amount to a failure by the representative to follow instructions and to do what was necessary and what was within his control to assist and present all relevant information for assessment of the application.

2. The relevant instrument specifying language tests, scores, relevant periods and passports is IMM15/062. In the present case, there is no evidence that at the time the application was made that the applicant met the requirement to provide an English language test undertaken within 3 years before the day on which the application was made.

3. The Tribunal finds it is satisfied that the applicant’s explanation for the delay which occurred was not a matter entirely beyond his control. The Tribunal accepts that the applicant had made a booking for the language test within the requisite 3 year period and before lodgement of his application. It is also true however that because of COVID-19 restrictions, the Department deferred considering assessment of the application until well after the applicant had completed a successful test result, which he did not lodge. Had he done so, it is likely the application would have been approved in line with the Department’s then policy.

4. Taking into account all relevant circumstances, the Tribunal is not satisfied that the application was accompanied by evidence that meets the required criterion at the time of decision and cl 485.212(1)(a) is not met.

Ministerial intervention

1. The Tribunal is conscious not to prejudice applicants in circumstances where an unintended result follows from the strict application of mandated requirements. It has no ability to waive or vary the requirement as in this instance, but can consider whether a different result might be provided through the intervention of the Minister.

2. This was discussed at the hearing with the representative. The representative submitted that there may be grounds for the Tribunal to consider making a recommendation for Ministerial intervention in the circumstances of this case.

3. Section 351 of the Act provides that the Minister may substitute a more favourable decision if the Minister thinks that it is in the public interest to do so. That is not a defined term. An applicant may also request the Tribunal to refer their matter to the Minister upon the completion of the review, or the Tribunal may choose to refer the matter of its own motion. The Minister has guidelines for what are considered matters in the ‘public interest’.

4. One of the recommended guidelines is where the decision to refuse the visa has resulted in an unintended consequence, as might be argued was the case in this instance, and which leads to a result which is manifestly unfair and unreasonable. The “unintended” result in this instance was the failure by the applicant or on his behalf to provide the evidence which the Department had agreed to accept, although not in strict compliance with the mandated requirement and but for which the applicant may have succeeded.

5. The Tribunal has accepted that the applicant always intended to do the correct and reasonable thing to achieve the preferable outcome for his visa application, and did in fact do so by booking for the test in time. He was aware of the need to book before he lodged the application and within the mandated 3 year period. He was only held back by the delay in completing the test and which delay was beyond his control and occasioned because of COVID-19 restrictions.

1. The applicant however was also defeated not only by his own delay, but by the actions of others on his behalf and for information not communicated, and for which there is no explanation provided. The Tribunal has some considerable sympathy for the applicant who obtained a strong test outcome at the first opportunity as soon as he was able to sit for the test after lodgement and genuinely believed all things necessary had been done. He was mistaken.

2. It is open to the Tribunal to make a recommendation for the Minister’s consideration and in the exercise of the Minister’s public interest powers under the Act. The Minister has published Guidelines for Ministerial Intervention in such cases.

3. There is no definitive guideline as to which cases may be referred, noting that all such requests will be assessed against the guidelines. It is ordinarily the case that intervention would only be considered and applied in ‘unique or exceptional circumstances’. Ultimately, that is a matter for the Minister.

4. In the Tribunal’s view, and subject always to the Minister’s interpretation, this particular case may meet the guidelines. Factors which might be considered include the compassionate circumstances of the applicant who has been in Australia for a considerable time, and who has no history of any visa issue or compliance arising.

5. There is nothing in the guidelines regarded as “inappropriate to consider” which applies to the applicant. The applicant has no pending Tribunal reviews or other applications before the Department, and but for refusal of this application, has never had any visa refused or cancelled. He gave his evidence truthfully and the Tribunal found him to be creditable.

6. The circumstance of the actions of another on the applicant’s behalf and which may have led to this result, were not of his making and in light of similar Subclass 485 visa circumstances for other applicants who have ultimately been successful, it could be construed as unfair to this particular applicant because of the circumstances of his case, and which may warrant the Minister to re-consider the outcome as “unintended”.

7. That is however a matter for the Minister, and which the applicant himself is able to pursue .

Conclusion

1. 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

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

Alan McMurran
Member