Sidhu (Migration)

[2021] AATA 3462

Sidhu (Migration) [2021] AATA 3462 (2 September 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Karamjeet Kaur Sidhu
Mr Gurdeep Singh Sidhu
Miss Parbani Kaur Sidhu
Master Jaspreet Singh Sidhu

CASE NUMBER:  2003626

HOME AFFAIRS REFERENCE(S):          BCC2019/6469205

MEMBER:Nicola Findson

DATE:2 September 2021

PLACE OF DECISION:  Perth

DECISION:The Tribunal affirms the decisions not to grant the applicants Skilled (Provisional) (Class VC) visas.

Statement made on 02 September 2021 at 10:38am

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – PTE Academic Test Taker Score Report – COVID-19 pandemic disrupted access to testing services – IELTS test undertaken after the visa application – Department allowing additional time – decision under review affirmed          

LEGISLATION

Administrative Appeals Tribunal Act 1975, s 2A
Migration Act 1958, ss 65, 363
Migration Regulations 1994, Schedule 2, cl 485.212

CASES

Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
Minister for Immigration and Citizenship v Li [2013] HCA 18

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 applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicants applied for the visas on 4 December 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 (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.

3. The delegate refused the visas on 13 February 2020, because the first named applicant (the applicant) did not meet the English language requirements.

4. The applicant appeared before the Tribunal on 12 May 2021, to give evidence and present arguments. 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. The applicant did not raise any concerns in relation to holding a telephone hearing.  The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.  

5. The applicants were represented in relation to the review by their registered migration agent. The migration agent also attended the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. 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)).

8. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062.

9. The applicant is a citizen of India. There is no evidence that the applicant has held a passport of a type specified, and so cl.485.212(b) is not met. Therefore, the applicant must meet cl.485.212(a).

10. On 10 May 2021, a written submission was provided to the Tribunal by the applicants’ migration agent.  In the submission, the representative explained that the applicant, in support of her claims in her visa application to have met the English requirement, provided to the Department a PTE Academic Test Taker Score Report (PTE Academic) (Registration ID: 327955775) undertaken in February 2018, and in which she had achieved 51 for listening, 46 for reading, 34 for speaking, 55 for writing and an overall score of 47.  The submission goes on to explain that the applicant tried to arrange to sit another English test, to achieve the specified minimum required scores for the visa.  However, because this was at about the time of the beginning of the Covid-19 outbreak, she was unable to undertake another test before her visa application was refused by the delegate.

11. The submission, by way of background, sets out that after completing a Master of Arts in India, the applicant arrived in Australia to further her studies in 2015.  She completed English courses as well as a Master of Professional Accounting before applying for the Subclass 485 visa to gain work experience in Australia.  It is submitted that the applicant has always complied with the conditions of her visas while in Australia. 

12. The submission indicates that presently the Department is allowing Subclass 485 visa applicants additional time to provide results for English language testing where Covid-19 has disrupted access to services.  A notice issued by the Migration Institute of Australia and dated 9 August 2020, was included in the submission and states:

    “The Department of Home Affairs will be allowing additional time for Temporary Graduate 485 applicants to provide results for English language testing where COVID-19 has disrupted access to services.

    For Time of Application requirements to be met, COVID affected applicants must provide, at time of lodgement, evidence they have an appointment booked for a English language test or provide evidence that they are unable to book a test where the centre is closed.

    The requirement must still be met in full, that is, applicants must provide evidence they have sat and achieved the appropriate score in an English language test in order for their Temporary Graduate Visas to be granted…”

    In circumstances where the Department is presently exercising leniency in respect of Subclass 485 applicants providing English language test results, the applicant’s representative urged the Tribunal to consider waiving the English language requirement in the applicant’s case.

13. The submission was accompanied by a copy of an IELTS Test Report Form recording that the applicant had undertaken an IELTS test on 13 March 2021 and achieved 5.5 for listening, 6.5 for reading, 6.0 for writing, 6.0 for speaking, and an overall band score of 6.0.  The Tribunal notes that this test was undertaken more than 12 months after the visa application was lodged.

14. 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 she 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.  The Tribunal explained to the applicant that it appeared she had not provided evidence that she had achieved the specified score for a specified test (for a PTE Academic, the minimum required scores for each of the test components are Listening (36), Reading (36), Speaking (36) and Writing (36), with the overall score required being 50), undertaken in the specified period. 

15. The applicant’s representative highlighted to the Tribunal, by way of oral submission, that the Department is currently allowing Subclass 485 visa applicants additional time to provide results for English language testing, because of the Covid-19 pandemic.  Given this, and in light of the applicant undertaking an IELTS and achieving the specified score, the representative urged the Tribunal to make a favourable decision in this case by waiving the English language requirements, or alternatively, to delay making a decision in this matter until the Department’s approach in positively dealing with Subclass 485 visa applications, where English test results do not accompany the application, is established.

16. The Tribunal discussed with the applicant that, notwithstanding the written and oral submissions of her representative, the issue for the Tribunal is whether the mandatory legal requirements for the visa are met.  The Tribunal explained to the applicant that while it is sympathetic to her circumstances, and despite the ‘policy’ the Department may be currently applying to Covid-19 impacted Subclass 485 visa applications, the Tribunal does not have any discretion to waive the requirement that she meets cl.485.212 and the specifications set out in the relevant instrument.

17. It also discussed that while the Tribunal has power in s.363(1)(b) of the Act to adjourn a review. It also has, as its statutory objective, providing a mechanism for review that: is accessible, fair, just, economical, informal and quick as well as proportionate to the importance and complexity of the matter; and, promotes public trust and confidence in the decision making of the Tribunal: s.2A Administrative Appeals Tribunal Act 1975.  In this case, the Tribunal indicated it would consider whether it should adjourn the review, having regard in particular, to whether in the circumstances of this case, the applicant is likely to be able to advance their case with the benefit of the requested postponement.

18. In deciding not to defer making its decision, the Tribunal has had regard to the Court’s considerations in Minister for Immigration and Citizenship v Li [2013] HCA 18 (8 May 2013) regarding the reasonableness of any request for an adjournment. The Tribunal has also had regard to the judgements in Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision making processes.

19. The issue for the Tribunal in this case is whether the applicant provided evidence with the visa application that she had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified, as required by cl.485.212. The evidence before the Tribunal is that the applicant undertook a language test specified in an instrument (PTE Academic), however, did not achieve the required minimum overall score within the period specified in the instrument.  The evidence also reflects that while the applicant undertook another specified test (IELTS) and achieved the required minimum overall score specified for that test, it was not undertaken within the specified period, that is three years before the day on which the application was made.  The Tribunal has had regard to the information before it concerning how the Department is currently dealing with Subclass 485 visa applications which are not accompanied by English language testing results because of Covid-19 disrupting access to testing services.  As discussed with the applicant at hearing, not only is this ‘policy’ at odds with the legal requirements of r.485.212, but given that the applicant lodged her application on 4 December 2019 (which was well before the World Health Organisation declared the coronavirus Covid-19 outbreak a pandemic in March 2020), and at the time of lodgement she had not made any arrangements to sit the IELTS test, the Tribunal is of the view that she could not be considered a ‘COVID affected applicant’ and that this policy would not apply to her in any event.  It is clear to the Tribunal, that based on the evidence before it, the applicant has not met, and even with additional time, cannot meet the requirements of r.485.212. The Tribunal does not consider it appropriate, in the circumstances of this case, to postpone making its decision.

20. On the evidence before it, the Tribunal accepts that the applicant has undertaken a language test specified in an instrument – a PTE Academic – within the specified period.  However, the applicant did not achieve the minimum scores specified for the PTE Academic.  The Tribunal also accepts, on the evidence, that the applicant has undertaken a specified language test – IELTS - and exceeded the scores specified.  However, this test was undertaken more than 12 months after the visa application was lodged.  It therefore was not undertaken in the period specified in the instrument, within the three years before the day on which the application was made.  The Tribunal is therefore not satisfied the visa 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.

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

22. 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

23. The Tribunal affirms the decision not to grant the applicants Skilled (Provisional) (Class VC) visas.

    Nicola Findson
    Member