Thanthirige (Migration)

[2024] AATA 3338

Thanthirige (Migration) [2024] AATA 3338 (30 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Charana Dilisara Thanthirige

REPRESENTATIVE:  Mr Chandima Janaka Bandara Weerasekara (MARN: 1461387)

CASE NUMBER:  2211415

HOME AFFAIRS REFERENCE(S):          BCC2021/1676545

MEMBER:Alison Mercer

DATE:30 August 2024

PLACE OF DECISION:  Melbourne

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

Statement made on 30 August 2024 at 4:05pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language requirement – IELTS test not undertaken in the 3 years prior to the visa application – impact of the COVID-19 lockdown – cancellation of test dates – Department did not enforce requirements temporarily – request for Ministerial Intervention – decision under review affirmed           

LEGISLATION

Migration Act 1958, ss 65, 351
Migration Regulations 1994, Schedule 2, cls 485.212, 485.232, 485.233

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 under s 65 of the Migration Act 1958 (Cth) (the Act).

2. The applicant applied for the visa on 27 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.) 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 visa on 18 July 2022 because the applicant did not have the required English language proficiency. The delegate found that the applicant did not hold a specified passport and had not undertaken a specified English test in the 3 years immediately before making his subclass 485 visa application. The delegate further found that the applicant did not meet cl.485.212(1) and therefore did not meet cl.485.212 as a whole.

4. The Tribunal received a review application from the applicant on 7 August 2022. It was accompanied by a copy of the delegate’s decision and an authority by which he appointed a registered migration agent, Mr Chandima Janika Bandara Weerasekara, as his representative and authorised recipient for correspondence. He also provided a statutory declaration dated 6 August 2024, a copy of an International English Language Testing System (IELTS) test report form indicating that he obtained an overall band score of 7.0 (with over 6 in each of the 4 test components) in a test he undertook on 22 March 2022, information indicating that his booking for a PTE Academic English test was rescheduled in August-September 2021, a booking for his IELTS test made in March 2022 and evidence that it was rescheduled, and a media report from the Department of Home Affairs dated 16 August 2021 about temporary arrangements for visa applicants at this time (that is, during the COVID19 pandemic).

5. In his statutory declaration, the applicant made the following points:

…

a.I had initially booked the PTE Academic test for 24^th August 2021 to be taken at Pearson Professional Centre – Box Hill, with the intention of meeting the English requirement for my Temporary Graduate (subclass 485) visa application prior to the expiry of my student visa.

b.On 16^th August 2021 it was announced that the ongoing COVID-19 lockdown in metropolitan Melbourne would be extended to 02^nd September 2021 and travel restrictions strengthened.

c.Therefore, given the circumstances I rescheduled my PTE academic test to 14^th September 2021, on 18^th August 2021. I later cancelled this test booking on 19^th August 2021, and rebooked another PTE Academic test for 28^th September 2021, on 24 August 2021.

d.At the time, I had no option available for me to take the PTE Academic test or another equivalent English test before the expiry of my Student (subclass 500) visa on 30^th August 2021.

e.As the Department of Home Affairs website on COVID-19 pandemic related concessions ( indicated that there would be flexible arrangements for applicants to meet English and Health requirements, I applied for the Temporary Graduate (subclass 485 visa) in the post-study work stream on 27^th August 2021 without the English test result.

f.I truthfully answered ‘No’ to the relevant question on the visa application whether I had taken an English test, in the 36 months prior to the visa application being made.

g.Thereafter, I further rescheduled my PTE academic test to November 15^th 2021 on 17 September 2021, to 07^th December 2021 on 31 October 2021, to 04^th January 2022 on 28^th November 2021, and to 17^th January 2022 on 14^th December 2021.

h.I cancelled my PTE Academic test booking for 17^th January 2021 on 26^th December 2021 and decided to take the IELTS test to meet the subclass 485 visa English requirement instead.

1. I initially booked the paper based IELTS general-training test for 12^th March 2022 on 31^st January 2022. On 3^rd March 2022, I changed this booking to a computer-based training test to be taken on 22^nd March 2022, at the Australian Institute of Language IELTS Test Centre – Box Hill.

j.I met the English requirements for the Temporary Graduate (subclass 485) visa on 25^th March 2022, and once I received my IELTS test report form by post, I uploaded it to my online visa application through ImmiAccount on 13^th April 2022.

k.I only ever took one English test to meet the requirements of the Temporary Graduate (subclass 485 visa) and attached the relevant results to my online visa application, before the case officer decided to refuse it on 18^th July 2022 on the basis that I did not meet the English requirement at the time of the visa application being lodged.

…

1. The applicant appeared before the Tribunal on 13 August 2024 to give evidence and present arguments. The Tribunal also received oral submissions from the applicant’s agent. They both participated in the hearing via videoconference.

2. The Tribunal exercised its discretion to hold the hearing by videoconference, determining it was reasonable to hold a hearing by videoconference, having regard to the nature of this matter and the individual circumstances of the applicant, who was based in New South Wales, and the Presiding Member, who was located in the Tribunal’s Victorian registry. 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 videoconference. The Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

3. The applicant confirmed the contents of his statutory declaration. He clarified that at the time that he lodged his subclass 485 visa application, he had made a booking to sit a PTE Academic English test on 28 September 2021. In response to the Tribunal’s query, the applicant said that he could not remember whether he uploaded the test booking record with his visa application. He did not end up sitting a test on 28 September 2021 as the COVID19 lockdown was extended to beyond this date, so he had to book another date further ahead. He said that this happened several times, with him having to cancel test dates and book new ones due to lockdown extensions and cancellation of test dates by the relevant test centres. He was ultimately able to take an IELTS test in March 2022 and provided the results to the Department, but they still refused to grant him a visa in July 2022 on the basis that the test had not been undertaken in the 3 years prior to the date he lodged his subclass 485 visa application.

4. The applicant and his agent noted that the Department had granted other students subclass 485 visas under the same circumstances, yet not the applicant. They further noted that the Department publicly announced that people could lodge their subclass 485 visa applications with a test booking and provide the results later during the COVID19 pandemic. The effect was very unfair as the applicant was denied a visa where people in almost identical circumstances received visas.

5. The Tribunal discussed with the applicant and his agent its view that although the Department did not enforce the requirements of cl.485.212 and the associated written instrument for a period during the COVID19 pandemic, the underlying legislation and instruments were never amended; therefore, although the Department was prepared to go outside the legislation during this period, the Tribunal did not have the legal authority to do so. The Tribunal explained that due to this, it appeared that it would have to find that the applicant could not satisfy cl.485.212 as the English test he undertook on 22 March 2022. It noted, however, that it could consider referring the applicant’s case for Ministerial intervention pursuant to s.351 of the Act. The applicant and his agent advised the Tribunal that the applicant had been able to lodge a subclass 190 permanent residence visa application on 24 January 2024, which was pending with the Department, so would be entitled to hold a bridging visa C until this application was determined, even if the Tribunal affirmed the decision to refuse to grant the applicant a subclass 485 visa application. In response to the Tribunal’s query, the applicant’s agent said that the estimated processing time for a subclass 190 visa was currently 24 months. The applicant told the Tribunal that he was currently living and working in Tasmania as in March 2023, he secured a graduate Engineer position in a 2 year program with TasWater.

6. The Tribunal estimated that, based on current workload, it would make its decision on the matter in late August 2024.

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

CONSIDERATION OF LAW, CLAIMS AND EVIDENCE

1. The issue in the present case is whether the applicant satisfies cl 485.212. Clause 485.212(1) 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(1)(a)); or

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

2. Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233: cl 485.212(2).  The Tribunal notes that cl.485.232 and cl.485.233 both refer to a person making a second subclass 485 visa application. It is satisfied that from the Department’s records that the applicant has not made an earlier subclass 485 visa application, and that the application under review is his first subclass 485 visa application.

3. As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) applies.

4. 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(1)(b) is not met. As such the applicant must meet cl 485.212(1)(a), which provides as follows:

485.212

(1) The application was accompanied by evidence that:

(a) the applicant:

(i) has undertaken a language test specified by the Minister

in a legislative instrument made for this paragraph; and

(ii) has achieved, within the period specified by the Minister in the instrument,

the score specified by the Minister in the instrument in accordance with the

requirements (if any) specified by the Minister in the instrument;

...

1. IMMI 15/062 states that an IELTS test is a specified language test for the purposes of cl.485.212(1)(a)(i) and that an applicant must obtain a minimum overall score of 6, with a minimum score of 5 points for each of the components of listening, reading, writing and speaking in such a test. Item 4 of IMMI 15/062 states that such a test must have been undertaken within the 3 years before the day on which the visa application was made.

2. The Tribunal acknowledges that the applicant provided to the Tribunal IELTS test results for a test he undertook on 22 March 2022, in which he obtained an overall score of 7.0 (with over 6 in each of the 4 test components). As noted above, the IELTS Test is a specified test, and the applicant obtained the required scores for that test set out in IMMI 15/062. However, as discussed with the applicant at hearing, the test was not undertaken by the applicant in the 3 years before the day on which the visa application was made (27 August 2021) as required by item 4 of IMMI 15/062. It is not disputed that the applicant had not undertaken any other specified English test in the 3 years prior to 27 August 2021.

3. The Tribunal notes the evidence provided by the applicant indicating that during this period, the Department advised applicants that if they were unable to obtain certain documents (such as health exams and/or English test results) due to COVID19 restrictions, they should lodge their subclass 485 visa applications and provide the documents as soon as possible after lodgement. The Tribunal also accepts that the applicant was prevented from undertaking a booked English test prior to making his visa application by the imposition of lockdowns in Melbourne due to the COVID19 pandemic, resulting in the closure of testing centres and cancellation of test dates. It also notes that the applicant made a number of other bookings to undertake an English test between August 2021 and March 2022, but was unable to sit tests due to cancellation of test dates and/or the extension of lockdowns in Melbourne.

4. It also notes the applicant’s belief that had he done this during this period, he would likely have been granted a subclass 485 visa.

5. While it is impossible to know if the Department would in fact have granted the applicant a visa, the Tribunal acknowledges that Departmental policy during the COVID19 pandemic period appears to have been to accept subclass 485 visa applications where an English test had not been undertaken prior to lodgement if there was evidence that an applicant had been unable to book a test date prior to lodgement due to COVID19 restrictions or illness.

6. However, the Tribunal does not have the discretion to depart from the clear wording of cl.485.212 and item 4 of IMMI 15/062, which clearly indicate that at the time of lodgement of the subclass 485 visa, the visa application must be accompanied by evidence that the applicant either held a specified passport (the applicant in this case does not) or that the applicant had, in the previous 3 years, undertaken a specified English test in which he had obtained the required scores.

7. Unfortunately, the applicant in this case is unable to meet this requirement, and the relevant legislation does not give the Tribunal any discretion to waive or overlook this requirement.

8. Accordingly, the Tribunal is not satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).

9. 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.

10. The Tribunal acknowledges that these circumstances have caused the applicant a significant amount of stress and led to his immigration status being unresolved for a number of years, affecting but not ultimately preventing him from obtaining Australian employment experience in his field of Engineering. It also notes the applicant experienced stress during the COVID 19 pandemic period, including isolation in Australia. The Tribunal notes that it is open to the applicant and his agent to seek Ministerial intervention pursuant to s.351 of the Act if they feel that the applicant’s circumstances are unique and/or compelling or otherwise are similar to those set out in the Ministerial intervention guidelines on the Department’s website: Ministerial intervention (homeaffairs.gov.au).

DECISION

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

Alison Mercer
Senior Member