Yan (Migration)

[2024] AATA 3196

Yan (Migration) [2024] AATA 3196 (8 August 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Cixuan Yan

REPRESENTATIVE:  Mr Song Gao (MARN: 1684862)

CASE NUMBER:  2210770

HOME AFFAIRS REFERENCE(S):          BCC2021/269741

MEMBER:Mary Sheargold

DATE:8 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 08 August 2024 at 2:53pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) – English language proficiency – IMMI 15/062 – opportunities to undertake language tests during the Covid-19 pandemic in Melbourne – Departmental concession – legislated requirements – 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 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 22 February 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 7 July 2022 because the application was not accompanied by evidence that the applicant had undertaken a prescribed English language test in the 3 years immediately before making the application. At the time of the delegate’s decision, there was no evidence available to demonstrate that the applicant had met the requirement in cl.485.212 of Schedule 2 to the Regulations.

4. The applicant appeared before the Tribunal on 30 July 2024, and again at a resumed hearing on 6 August 2024, to give evidence and present arguments.  Each of the Tribunal hearings was conducted with the assistance of an interpreter in the Mandarin and English languages.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearings.

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

CONSIDERATION OF 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)).

Relevant background information

1. The applicant applied for her graduate visa at approximately 9:15pm on 22 February 2021.  Prior to lodging her application, she had gathered the necessary documents, and where required documents were not available, she booked appointments to obtain them.  Her English language test was an example of a document she had not been able to obtain prior to submitting her application.

2. However, she followed the guidance given by the Department, published on its website, acknowledging the impact of the Covid-19 pandemic on applicants’ abilities to sit new English language tests to ensure they met the 3 year validity requirement set out in the relevant instrument, IMMI 15/062.  The Department’s guidance to applicants is that simply providing evidence of having booked to sit a specified English test prior to lodging the application would be accepted, and that the Department would not finalise its decision until a reasonable time after that test had been taken and the applicant had an opportunity to upload the test result to their IMMI account.  At around 6:30pm on 22 February 2022, the applicant booked in to take an IELTS language test in April 2021, therefore ensuring she would be caught by the Department’s guidelines for acceptable provision of the English language test results.

3. Unfortunately, the applicant in this case fell prey to a comedy of errors that delayed her not only taking the test she had originally booked for April 2021 until January 2022, but also from obtaining a copy of her results statement for that test until 6 July 2022.  Her visa application was refused on 7 July 2022.

4. The applicant’s evidence is that she failed to attend her test originally booked for April 2021 because she had become unwell and was worried she may have been infected with Covid-19.  There is no evidence before the Tribunal to confirm or deny that diagnosis.  However, the Tribunal understands that the applicant would likely have been denied entry to the test centre had she presented exhibiting cold and flu symptoms.  She stated that she postponed the test, but when she next attended the test centre, after a second long-term lockdown in metropolitan Melbourne, she was refused entry as the invigilators were not convinced that her Covid-19 vaccination certificate belonged to her as her first and last names appeared in reverse order.

5. The applicant elected to delay taking the test further while she attempted to negotiate with Medicare to reissue her vaccination certificate to display her name correctly, and she told the Tribunal that the Department sent her a letter in each of August and December 2021 advising that she needed to provide her English language test result, as well as results from her health examination.  The applicant’s evidence is that she did not fully read or understand those letters, and she was not aware that the Department offered only a 90 day grace period to provide the additional information and that it may proceed to make a decision on the application at any time after that. 

6. Further, her evidence is that she either did not read, or did not understand, the section of the letter advising that she was able to seek additional time to provide the documents if she could not upload them within 90 days due to circumstances beyond her control.  Rather, she believed that because she had received that correspondence from the Department via email, from an email address commencing with ‘noreply’, she was not able to write back and request any additional time to provide the requested information.

7. The applicant claims to have been very distressed and worried about her visa application for the whole period from applying through to finally undertaking the English language test, months later finally obtaining the results, and on receiving the refusal decision a day later.  This distress and worry may explain some of the significant gaps in the timeline she has provided the Tribunal regarding her attempts to obtain a satisfactory English language test and provide a copy to the Department.  The applicant stated that on the night she received her results, 6 July 2022, she attempted to upload the document on the website but encountered technical difficulties and decided it could wait until the following morning; it was at that time that she realised her application had already been refused.

8. The applicant and her representative attended the hearing seeking to rely on the Department’s policy to accept an English language test result achieved prior to a decision being made so long as an applicant had at least booked to attempt a test prior to lodging their visa application.  The Tribunal has reviewed the applicant’s IELTS test paper dated 30 January 2022 for a test undertaken on 28 January 2022 and notes she achieved the results required in IMMI 15/062.

9. The most unfortunate aspect of the applicant’s present predicament is that, for good reason, IELTS will not provide electronic copies of test results but rather posts hard copies to applicants’ registered addresses.  The applicant claims not to have received her results after the test, and that by March or April 2022 she was growing concerned and rang the test centre to enquire about the status of her report.

10. The applicant claims she was advised that there was a large backlog and a delay in processing test results due to an influx of testing that occurred after Melbourne exited its sixth, protracted lockdown in late 2021, and that she should not worry and would receive her notification in due course.  By early June she had become more concerned so emailed the test centre to request a new copy of her results.  She stated that she did not know she could contact the Department to advise them that she had passed the test and was awaiting the results certificate from the test centre. 

11. In its email of 15 June 2022, the test centre provided the applicant with multiple options to obtain a further copy of her results, including booking a time to collect the results paper in person at the test centre, or paying a fee for a registered post letter to be sent with a new copy.  On 30 June 2022, the applicant provided evidence of having paid the $10.00 fee for a new statement of results.  Her evidence is that the Australia Post courier left a card at her address on 6 July 2022 to collect the registered post letter, and she collected it later that day.

12. The applicant stated that during this whole time, she did not engage the services of her current migration agent, and that she managed the application entirely on her own, save for one conversation with a migration agent who she claims advised her to abandon the application as it would be refused.

Anaylsis

1. 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).

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

3. IMMI 15/062 specifies the English language tests, scores, relevant periods, and passports that relate to the requirements in cl 485.212(1).  The applicant is a Chinese national and she confirmed during the hearing that she does not hold a passport for any of the countries listed in clause 6 of IMMI 15/062.  Therefore, she does not qualify for the exemption in cl 485.212(1)(b), and cl 485.212(1)(a) applies.

4. The applicant does not dispute that she had not undertaken an English language test in the 3 years immediately prior to making her Subclass 485 visa application.  The visa application was lodged at the height of the Covid-19 pandemic in Melbourne, and opportunities to undertake language tests had been virtually non-existent in the year prior to her application being lodged.  The applicant sought to rely on a Departmental concession offered to Subclass 485 visa applicants whereby as long as their application was accompanied by evidence of having booked to undertake an English language test, the test itself did not need to have been completed in the 3 years prior to the application being made.

5. The Tribunal noted at the outset its concerns that the applicant sought to rely on this Departmental concession, noting it had not been legislated in any manner (including in an Act, the Regulations, or any other instrument).  The Tribunal does not have the discretion to depart from the requirements stipulated at law in cl 485.212(1)(a) and IMMI 15/062.  Those legislated requirements are that at the time the application is lodged, it must be accompanied by evidence that the applicant had undertaken a specified English language test, achieving the required score/s, in the 3 years immediately before making the visa application.

6. The legislation does not give the Tribunal any discretion to waive or overlook this requirement despite the fact that, for the 16 months her application sat awaiting an English language test result with the Department, because the Department had elected to adopt a position that would have permitted the applicant to upload a post-dated English language test result such as this applicant’s IELTS test results achieved on 28 January 2022.  It is unfortunate that, in this case, the applicant is unable to meet the requirement set out in cl 485.212(1)(a) and IMMI 15/062.

7. Based on all the available evidence, the Tribunal is not satisfied that the application was accompanied by evidence that the applicant had undertaken a prescribed English language test in the 3 years immediately before the application was made.  Therefore, cl 485.212(1)(a) is not met.

8. 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.

9. The Tribunal acknowledges the significant stress the applicant has felt awaiting the outcome of this application, and notes that she recently resigned her permanent employment in regional Victoria due to the impact her lack of substantive visa was having on her mental health.  She revealed late in the resumed hearing that she has a fiance who is an Australian citizen, and that they own a mortgaged property in Drouin, Victoria.  The applicant is a qualified Early Childhood Educator, a role where there is a known skills shortage, especially in regional areas. 

10. The Tribunal notes that it is open to the applicant and her agent to seek Ministerial intervention pursuant to s.351 of the Act if they believe that there are unique, exceptional or compelling circumstances similar to those set out in the Minister’s Guidelines for intervention set out on the Department’s website.

DECISION

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

Mary Sheargold
Member