Tobena (Migration)

[2019] AATA 4595

Tobena (Migration) [2019] AATA 4595 (16 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Melville Tobena

CASE NUMBER:  1921099

DIBP REFERENCE(S):  BCC2019/2464227

MEMBER:Bridget Cullen

DATE:16 September 2019

PLACE OF DECISION:  Brisbane

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

Statement made on 16 September 2019 at 2:58pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) – Subclass 485 (Temporary Graduate) – English language proficiency – completed IELTS after lodgement of application – thought he was exempt – no discretion to waive/vary requirement – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), 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 Immigration to refuse to grant the applicant a Skilled (Provisional) (Class VC) visa under s.65 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 9 May 2019. Visa Class VC contains Subclass 485. 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). 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 11 July 2019 because the applicant did not have the required English language proficiency.

4. The applicant appeared before the Tribunal on 16 September 2019 to give evidence and present arguments.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. 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)).

7. 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(b) is not met. As such the applicant must meet cl.485.212(a).

8. For the purpose of this review, the Tribunal has had access to the Tribunal's case file, the Department's file and the oral submissions made at hearing by the applicant. The Tribunal notes that the applicant provided the Tribunal with the following:

   ·IELTS Test Report Form Results, dated 16 July 2019, where the applicant achieved an Overall Band Score of “8” representing that he is a “Very Good User” of English;

   ·Engineers Australia Skills Assessment, indicating that the applicant meets ANZSCO Skill Level 1, to be a Professional Engineer, following completion of a Civil Engineering Degree at the University of Queensland in December of 2108;

   ·Letter of support from Fenco Industries, the applicant’s employer, indicating that he is a valuable member of the Fenco team.

9. The applicant is a citizen of Papua New Guinea, aged 24 at the time of hearing.  The applicant completed his last 2-years of High School Study at Peace Lutheran College in Cairns, Queensland, instructed in English.

10. Following his graduation from High School, the applicant enrolled in a double degree at the University of Queensland, successfully completing Bachelor’s Degrees in Civil Engineering and Business Management, in December of 2018.  The applicant worked while a student, careful not to exceed the hours permitted by his student visa, and obtained a respectable grade point average.

11. The applicant has also been an active volunteer, and is particularly proud of the work he has done to help set up the University of Queensland’s South Pacific Islander student club.  Through this Club, the applicant has been involved in outreach programs encouraging other young Islander students, in high schools with traditionally low University entrance rates, to undertake University studies.  The applicant says, and the Tribunal has no reason not to accept, that this has resulted in increased numbers of Pacific Islander students at the University of Queensland.  When he began his studies, the applicant says there were only 10 students – in contrast to the 40 students when he left University.  He continues to be involved, and spoke to the Tribunal about a Cultural Show that is happening in 3-weeks’ time.

12. The applicant plays competitive sport with the Oxley United Football Club, in Brisbane’s Western Suburbs.  He has assisted with under-14 coaching. 

13. The criteria for the visa are referred to above, and set out in the subregulation, and include the criterion in relation to undertaking the English language test (485.212).

14. The Tribunal explained to the applicant at the hearing that it was a requirement under the regulations for him to have undertaken a language test specified by the Minister and within the requisite period, being a three-year period ending on the day of lodgement of the visa application.

15. It was also a criterion that the applicant achieve the requisite score as required by this subregulation for the particular English language test which he undertook.

16. In this case, the applicant undertook the IELTS test mentioned above after the time of his application.  He completed the visa application form without the benefit of professional migration assistance.  He believed that, having been educated in English at both high school and University level in Australia, that he was exempt from this requirement.  The basis for this belief was that he knew others who did not have do the IELTS test.  The Tribunal notes that the applicant has been in Australia since 2011, and there was a change in the law relating to undertaking the English language test as at 18 April 2015. 

17. The applicant also explained that he would have undertaken the English test sooner, if he had understood the impact of it on his visa application.  The Tribunal accepts the applicant’s evidence – as was revealed by the IELTS Test Score he achieved, the applicant is adept with the English language.  During the Tribunal hearing, the applicant was courteous, well-spoken, and readily able to articulate his thoughts.

18. There is no discretion under the Act or regulations, for the Tribunal to vary or waive the requirement to achieve the requisite score within the required period. The Tribunal explained this to the applicant at the hearing.

19. The applicant concedes that he declared “No” to the question on the visa application form that asks, Do you hold a passport from the USA, UK, Canada, New Zealand or the Republic of Ireland (to demonstrate you have competent English) or have you undertaken an English test within the last 36 months that demonstrates you have at least competent English.”  The applicant believed that the Department would be aware of his extensive study in Australia, in English, and did not realise that the Department would proceed to refuse the visa without giving him an opportunity to provide further information.  Until this point, the applicant explains that he had never had any difficulty, including successfully applying for his student visa to be extended for a brief period. 

20. The Tribunal asked if the applicant had any further or other comments he wished to make, and he said simply that he hoped to be able to complete graduate experience, with Fenco Industries, which wants to employ him to do project engineering. 

21. The Tribunal finds that the applicant sat for an IELTS language test, being one of the tests specified in IMMI 15/062. The Tribunal finds that the applicant sat the test outside the period required, being 36 months prior to the making of the application. The Tribunal asked the applicant if it was possible he had completed an earlier IELTS test as part of the student visa application process.  The applicant says he did not, and that the only IELTS test he took was the one he completed on 16 July 2019, a few days after the Department’s refusal on 11 July 2019.

22. As such, the Tribunal is satisfied that the applicant did not meet the requirements of subregulation 485.212(a)(i).

23. The Tribunal has had regard to the requirements of the Act and Regulations and the facts and circumstances of this particular case and the information provided by the applicant.

24. The Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212(a). The Tribunal has no discretion to waive the requirements.

25. 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.

26. The applicant has asked the Tribunal about other avenues to lawfully remain in Australia in order to complete his graduate work experience.  The Tribunal has told the applicant that he can obtain advice from a registered migration agent, and made him aware of the Office of Migration Agents Registration Authority. 

27. The Tribunal has also told the applicant that although his circumstances do not meet the Tribunal’s guidelines for referral to the Minister, that individual citizens are always able to independently seek the intervention of the Minister.  The decision to exercise discretion, or not, rests entirely in the hands of the Minister.  The Tribunal’s role, as explained to the applicant, is to make lawful decisions that apply the law and regulation, as set by the government.

28. 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

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

    Bridget Cullen
    Member