1512972 (Migration) - [2016] AATA 3482

1512972 (Migration) [2016] AATA 3482 (15 March 2016)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Kulwinder Singh -
CASE NUMBER:  1512972
DIBP REFERENCE(S):  BCC2012/912647
MEMBER:Alan Duri
DATE:15 March 2016
PLACE OF DECISION:  Sydney
DECISION:The tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.

Statement made on 15 March 2016 at 11:39am
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

Mr Singh was born in 1988 in India. He first came to Australia on 31 December 2007 on a Subclass 572 student visa.
On 22 August 2012 Mr Singh applied for a Skilled (Residence) (Class VB) visa under s.65 of the Migration Act 1958 (the Act).
On 17 January 2014 the delegate refused to grant the visa because Mr Singh did not have the required English language proficiency.
On 5 May 2014 the Migration Review Tribunal affirmed the department’s decision. The tribunal was of the understanding that Mr Singh did not attend the hearing.
On 18 September 2015 the Federal Circuit Court of Australia remitted the matter by consent. As it happens although Mr Singh’s decision record states that he did not appear at the hearing, he in fact he did. There were two applicants named Kulwinder Singh who were both invited to the same multi-applicant hearing. It was the other Kulwinder Singh who did not appear. At all material moments, the tribunal understood Mr Singh to be the other Kulwinder Singh who did not appear at the hearing.
Mr Singh appeared before the tribunal on 3 March 2016 to give evidence and present arguments.
Mr Singh was represented by his migration agent Mr Ray Turner.
The tribunal also received pre and post hearing submissions.
CONSIDERATION OF CLAIMS AND EVIDENCE
The question before the tribunal is whether Mr Singh has “competent English” as required by cl.885.213. Competent English is defined in r.1.15C, which as it was at the time of the visa application, provided:
(1)A person has competent English if:
(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and
(b)the test was conducted in the 3 years immediately before the day on which the application was made; and
(c)the person achieved a score specified in the instrument.
(2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation.
The relevant instrument is IMMI12/018. There is no evidence that Mr Singh has held a passport of a type specified, and as such r.1.15C(2) is not met. Therefore, to satisfy cl.885.213 Mr Singh must meet r.1.15C(1) by achieving a specified score in a specified test in the three years immediately before the day on which the application was made.
The relevant instrument, 12/018 at 3.E provides:
For the purposes of subparagraph 1.15C(1)(c) the following scores:
·an IELTS test score of at least six for each of the four test components of speaking, reading, writing and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 3482
Decision Date: 15 March 2016

CaseChat Overview and Summary

The case of 1512972 (Migration) involved Mr Singh, who sought a Subclass 885 visa, also known as a Skilled (Residence) (Class VB) visa. The primary dispute was whether Mr Singh met the "competent English" requirement as stipulated by clause 885.213 of Schedule 2 to the Migration Regulations. The tribunal reviewed the evidence and submissions to determine if Mr Singh fulfilled the necessary criteria for the visa.

The legal issues before the tribunal were whether Mr Singh achieved the required scores in an IELTS test within the three-year period immediately preceding his visa application. According to the relevant regulations, a person must either hold a passport of a specified type or achieve a minimum score in each of the four components of an IELTS or OET test. Given that Mr Singh did not hold a specified passport, the tribunal focused on whether he satisfied the IELTS requirement by achieving the specified scores in the requisite time frame. The tribunal examined the test scores provided by Mr Singh and considered whether they could be cumulatively assessed to meet the criteria.

In reaching its decision, the tribunal noted that Mr Singh had taken multiple IELTS tests over the three years before his visa application, but none of these tests achieved the required score of six in each of the four components. Although Mr Singh argued that he achieved a score of six in each category at different times, the tribunal was required to assess the scores in a single test taken within the stipulated period. The tribunal concluded that the results of multiple tests could not be mixed and matched to satisfy the requirement. Therefore, Mr Singh did not meet the criteria for competent English as defined in the regulations.

As a result, the tribunal affirmed the decision not to grant Mr Singh a Subclass 885 visa. The tribunal held that since Mr Singh did not satisfy the competent English requirement, he did not meet the criteria for the visa. The tribunal's decision was based on the clear regulatory requirements and the evidence presented during the hearing.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The tribunal also received pre and post hearing submissions.CONSIDERATION OF CLAIMS AND EVIDENCE The question before the tribunal is whether Mr Singh has “competent English” as required by cl.885.213. Competent English is defined in r.1.15C, which as it was at the time of the visa application, provided: (1)A person has competent English if:(a)the person undertook a language test, specified by the Minister in an instrument in writing for this paragraph; and(b)the test was conducted in the 3 years immediately before the day on which the application was made; and(c)the person achieved a score specified in the instrument.(2)A person has competent English if the person holds a passport of a type specified by the Minister in an instrument in writing for this subregulation. The relevant instrument is IMMI12/018. There is no evidence that Mr Singh has held a passport of a type specified, and as such r.1.15C(2) is not met. Therefore, to satisfy cl.885.213 Mr Singh must meet r.1.15C(1) by achieving a specified score in a specified test in the three years immediately before the day on which the application was made. The relevant instrument, 12/018 at 3.E provides:For the purposes of subparagraph 1.15C(1)(c) the following scores:·an IELTS test score of at least six for each of the four test components of speaking, reading, writing and listening; or·a score of at least ‘B’ in each of the four components of an OET. The visa application was on 22 August 2012. Mr Singh undertook an IELTS test on 30 June 2012. According to the results, Mr Singh achieved a score of 7.0 for listening; 5.0 for reading; 6.0 for writing and 6.0 for speaking. There is no evidence or suggestion that Mr Singh achieved in a single IELTS test taken in the three years before the visa application a score of at least 6 for each of the four test components of speaking, reading, writing and listening. There is also no suggestion that Mr Singh had undertaken the alternate OET test. During the hearing Mr Singh told the tribunal that he had undertaken other IELTS tests in the three years before the visa application and that although none of the tests achieved a score of 6 in each category overall he managed to get a 6 score in all categories at different times. After the hearing the tribunal received some additional IELTS tests including the following:·IELTS test dated 16 June 2012 with a score of 6.5 for listening; 6.0 for reading; 5.5 for writing and 5.0 for speaking. Essentially Mr Singh is submitting that at various stages in the three years he has achieved a 6 score in each of the categories. For example although in 30 June 2012 he achieved 5.0 for reading, on 16 June 2012 he achieved 6.0. In other words Mr Singh is requesting that his results be mixed and matched to achieve the desired outcome. Mr Turner’s submission of 14 March 2016 notes s.23 of the Acts Interpretation Act 1901 provides that words in the singular include the plural. Mr Turner submitted:“Applying this construction, an Applicant needs to provide test results in one or more IELTS test, taken in the three years prior to the date of lodgement of their application, showing scores in any test viewed cumulatively, of 6 in each of the discipline of speaking, reading, writing and listening.”

Decision

Reasons for decision

On the basis of the above, Mr Singh does not meet the requirements of cl.885.213 of Schedule 2 to the Regulations and therefore does not satisfy the criteria for the grant of a Subclass 885 visa. As this is the only relevant subclass in this case, the decision under review will be affirmed.DECISION The tribunal affirms the decision not to grant the applicant a Skilled (Residence) (Class VB) visa.Alan DuriMember

Ratio Decidendi

Legal Principle Established

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