Ukhnaa (Migration)

[2020] AATA 3000

Ukhnaa (Migration) [2020] AATA 3000 (14 July 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Ms Batsuren Ukhnaa
Mr Altangerel Bayarsaikhan
Mr Munkh-od Altangerel
Ms Enkhgerel Altangerel

CASE NUMBER:  2002270

DIBP REFERENCE(S):  BCC2019/4457950

MEMBER:Karen McNamara

DATE:14 July 2020

PLACE OF DECISION:  Sydney

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

Statement made on 14 July 2020 at 12:54pm

CATCHWORDS

MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – specified test undertaken within three years before application made, but specified score not achieved and evidence not provided with application – another test undertaken after application made, with specified score achieved and evidence provided – claim that former agent advised that applicant could obtain test score after application – no discretion to waive requirement – members of family unit – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 65

Migration Regulations 1994 (Cth), Schedule 2, cll 485.212(a)(ii), 485.311

CASE

Anand v Minister for Immigration and Citizenship [2013] FCA 1050

Nguyen v Minister for Immigration [2016] FCCA 1523

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 (the delegate) to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 6 September 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 (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 24 January 2020 because the first named applicant Ms Batsuren Ukhnaa (the applicant) did not have the required English language proficiency.

4. The delegate also found that the second, third and fourth named applicants, could not be granted a Skilled (Provisional) (Class VC) visa, as they did not meet the secondary visa criterion (cl.485.311) requiring them to be a member of the family unit of a person who met the primary visa criteria and holds a Subclass 485 visa.

5. The applicants lodged an application for review of the delegate’s decision with the Tribunal on 6 February 2020. A copy of the delegate’s decision record accompanied the review application.

6. On 26 June 2020, Ms Batsuren Ukhnaa appeared before the Tribunal via telephone on behalf of the applicants, to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Mongolian and English languages.

7. 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 Tribunal is satisfied that the applicant was given a fair opportunity to give evidence and present arguments.

8. The applicants were represented in relation to the review by their registered migration agent. The representative did not attend the Tribunal hearing.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

10. 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)).

11. The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. The relevant passports are a valid passport issued by; the United Kingdom, the United States of America, Canada, New Zealand or Republic of Ireland, to a citizen of that country.

12. 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.

13. The Tribunal is satisfied that the applicant holds a Mongolian passport and therefore does not hold a passport specified in IMMI 15/062. The applicant therefore must demonstrate that she has achieved the required scores in a specified English test undertaken in the three years preceding the visa application (that is, in the three years prior to 6 September 2019).

14. The applicant has provided to the Tribunal a copy of the delegate’s decision record. It records that on 6 September 2019 the applicant lodged an electronic application for a 485 Post Study Work Stream visa. When making the visa application the applicant answered “Yes” to the question “Have you undertaken an English test within the last 36 months?” In support of her English language capability, the applicant provided Test Reference Number 360686064 for an English language test from PTE Academic that was undertaken on 02 September 2019. Evidence of her English test results were not provided at the time of lodgement.

15. Department records show that the Department subsequently contacted the applicant requesting her to provide evidence of her English test results. On 16 December 2019, the applicant provided the results of another PTE Academic Test which was undertaken on 14 December 2019. The Test Reference Number was 366542572.

16. The delegate records that the English language results were assessed against the period in which the test can be taken as specified by Minister in the instrument above. The English language certificate confirmed the applicant took this test on 14 December 2019, which is after the date in which the application was lodged. Therefore, these results do not satisfy 485.212(a)(ii) as the applicant undertook their English language test after the day of lodgement of their application. Departmental systems show that the Test Reference Number 360686064 taken on 2 September 2019 had an overall score of 44.

17. The applicant has provided to the Tribunal a PTE Academic Test report for a test undertaken on 14 December 2019, after the visa application was made. The applicant scored 50 for listening, 45 for reading, 54 for speaking and 49 for writing, and an overall score of 50 which satisfies the minimum required score of 50 as stipulated in the relevant instrument. However, this test was undertaken, and the score attained approximately three months after the visa application was made.

18. The applicant’s representative provided a written submission to the Tribunal dated 19 June 2020, in which he submits that the applicant lodged her application on 6 September 2019. At that time, she had undertaken an English language test, PTE Academic, on 2 September 2019 (test reference 360686064) and obtained an overall score of 44, falling short of the requirement.

19. The representative submits that the applicant failed to take the English test before the day of lodgement of her visa application for reasons beyond her control including that she had been advised by her former migration agent that she could proceed to lodge her 485 visa application and obtain a sufficient English test score later. Whilst this advice was incorrect, the applicant proceeded with her 485 visa application and whilst she did not achieve the specified score from her attempt of the PTE Academic on 2 September 2019, she was under the impression that she could attempt the PTE Academic test again and if she could achieve the required score, she would be granted the 485 visa. The agent asserts that because she relied on the advice from a registered migration agent her failure to meet the criteria of the 485 visa was beyond her control.

20. The agent further submits that the applicant did not achieve the required score on her first attempt of the PTE Academic because she was suffering from chronic lower back pain following a motor vehicle incident in 2016. In support the applicant has provided to the Tribunal medical reports evidencing her medical condition.

21. At the hearing the Tribunal discussed with the applicant the requirements that the visa application be accompanied by evidence that the applicant had undertaken a specified language test in the specified period and achieved the specified results. While it noted that the applicant sat a PTE Academic on 14 December 2019 in which she achieved the specified results, the test was outside of the specified period and did not accompany the application.

22. The applicant told the Tribunal that she accepts responsibility for the oversight and that she should have checked the visa requirements.  However, at the time she relied upon the advice of her former migration agent. The applicant told the Tribunal that she had been in a motor vehicle accident in 2016 which had left her with chronic backpain. The pain had impacted her ability to obtain a successful test score when she sat the English test in September 2019.

23. The Tribunal has considered the evidence before it, including submissions from the representative and the applicant.  Based on the information before it, the Tribunal is satisfied that that the applicant has undertaken a specified test, a PTE Academic test on 14 December 2019 in which she achieved the specified score to satisfy her application.

24. The Tribunal finds however that the PTE Academic test taken on 14 December 2019, was not taken in the specified period and did not accompany the application and as such, the applicant does not meet the requirements of cl.485.212(a)(ii).

25. The Tribunal has considered whether the application was ‘accompanied by evidence’. The Tribunal notes that when the applicant lodged her application with the Department, she provided a Test Reference Number (360686064) for an English language test from PTE Academic that was undertaken on 2 September 2019. She did not provide a copy of this test with her application and when contacted by the Department to provide evidence of her English test results, on 16 December 2019 the applicant provided the results of another PTE Academic Test which was undertaken on 14 December 2019.

26. Whilst the Tribunal acknowledges that the applicant provided the Department evidence of having undertaken a language test and achieved the score prescribed, the Tribunal must still decide whether the visa application was accompanied by evidence that the applicant had undertaken a language test specified in the instrument; and achieved, within the period specified in the instrument, the score specified.

27. In considering this matter the Tribunal has had regard to relevant case law. The Tribunal has had regard to the case of Anand v Minister for Immigration and Citizenship [2013] FCA 1050, in which Katzmann J considered a clause (cl.487.216) requiring that the visa application be accompanied by evidence and held that:

    ‘It seems to me that the intention of the regulations is to ensure that the application is not processed unless it meets certain criteria.  That is why relevant evidence is to accompany the application.  Consistent with that purpose the evidence should be submitted with or at the same time as the application.  Yet, it is not necessarily inconsistent with that purpose that the evidence is submitted after the visa application is lodged, although how long after is another question… For the above reasons, I am prepared to accept that evidence accompanying an application could be supplied after the application is lodged.  Evidence supplied around the time of the application may be sufficient. I doubt, for example, if accompanying evidence appeared in an annexure which through inadvertence had not been uploaded or attached to the application but which was forwarded a day or so later, that anyone would argue that the evidence did not accompany the application. It might even extend beyond that.  Where, for example, an applicant indicated in his application or a document submitted with it that he would forward the evidence within a week, and he did so, it might be said that the evidence accompanied the application. But the words “accompanied by” are not so elastic as to stretch to evidence submitted, as here, five months after the application was lodged…’

28. The Tribunal notes that Anand’s case dealt with a ‘time of application’ requirement under the cl.487.21 heading and was not contained in the cl.487.216 criterion itself.  However, the criterion that applies in this case itself specifies that ‘The application was accompanied by’ the specified evidence. The Tribunal is of the view the use of the word ‘was’ locates the requirement clearly in the past. While the Tribunal takes any information provided into account at the time of its decision there are some provisions which must be met before that time. The Tribunal is of the view the requirement of cl.485.212 is one of those provisions.

29. The Tribunal has had regard to another case, Nguyen v Minister for Immigration & Anor [2016] FCCA 1523, in which Burchardt J held that the words ‘accompanied by’ in the context of a Subclass 485 visa application are ‘imperative’ and suggest that there must be ‘a very close temporal connection’ between the time the application is lodged and when the evidence which must accompany that application must be provided. In that case, Burchardt J held that a 29 day gap was too great to meet the temporal requirement. The Tribunal notes that in that case, Burchardt J was considering cl.485.223, not cl.485.212.  However, cl.485.223 also provides that at the time the visa application was made, it was accompanied by evidence …, which is essentially the same phrase as that used in cl.485.212.

30. In this case the applicant did not provide the successful PTE Academic test results to the Department until 16 December 2019, approximately three months after the visa application was made. The Tribunal has enormous sympathy for the applicant’s circumstances and accepts that she is a credible witness, who unfortunately misunderstood the requirements of the law. However, considering the case law the Tribunal is not satisfied the application was ‘accompanied by’ this evidence. The Tribunal is of the view that in this case there was not a close temporal connection between the visa application and the time the applicant provided the evidence.  The Tribunal therefore is not satisfied that the application was accompanied by evidence that the applicant meets cl.485.212(a).

31. The Tribunal observes that it has no discretion within the Act or Regulations to waive the requirements of cl.485.212.

32. As the first named applicant does not meet an essential criterion for the grant of a subclass 485 visa, cl.485.212 of Schedule 2 to the Regulations is not met.

33. There is no evidence before the Tribunal to indicate that the second, third or fourth named applicants meet the primary requirements for grant of the visa.

34. In relation to the second named applicant Mr Altangerel Bayarsaikhan, the third named applicant Mr Munkh-od Altangerel, and the fourth named applicant Ms Enkhgerel Altangerel, the Tribunal notes that cl.485.311 of Schedule 2 to the Regulations requires that a secondary visa applicant is a member of the family unit of a person (the primary applicant) who holds a Subclass 485 visa granted on the basis of satisfying the primary criteria for the grant of the visa.

35. As the applicant has not met the requirements for the grant of a Subclass 485 visa, and is not the holder of a Subclass 485 visa, it follows that the secondary applicants, Mr Altangerel Bayarsaikhan, Mr Munkh-od Altangerel and Ms Enkhgerel Altangerel as a member of Ms Batsuren Ukhnaa’s family unit, are therefore unable to satisfy the criteria for this visa class. As such the second named, third named and fourth named applicants do not satisfy cl.485.311 of Schedule 2 to the Regulations.

36. 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

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

    Karen McNamara
    Member