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 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.”
In the tribunal’s view the English definition above contemplates a score in a single test. This construction is, in general terms, supported by judicial consideration of an item in Schedule 6A which refer to scores achieved in ‘an IELTS test’. The tribunal notes the High Court decision in Bodruddaza v MIMIA [2007] HCA 14 228 CLR 651 in considering similarly worded provisions concerning English language skills that the apparent objective of requiring a particular level of overall competence in the English language would not be achieved if the requirement were to be satisfied by sitting the test on several occasions, concentrating on several different components, until there was accumulated a sufficient collection of scores.
Therefore the tribunal finds that Mr Singh did not achieve at least six in one of the test components of the IELTS test score. The tribunal is unable to be satisfied that Mr Singh has “competent English” as defined in the regulations.
Before the hearing the tribunal received a submission from Mr Turner noting that “the instrument is not legislation and is subject to the legal interpretation conventions permitting substantial compliance”. Mr Turner noted that Mr Singh’s overall IELTS score was 6.0. Mr Turner went on to submit that Mr Singh “has substantially complied with the requirement to provide a form that shows scores of a minimum score of 6 in each category”. Mr Turner provided an IELTS test dated 11 November 2015 and he submitted that Mr Singh has met the “legal intention requirements” to show that it has competent English. Mr Turner referred to the s.13 of the Legislative Instruments Act 2013 ands.25C of the Acts Interpretation Act 1901 to support his submission.
The tribunal does not agree with Mr Turner’s submission concerning that the competent English test simply requires “substantial compliance”. Section 25C of the Acts Interpretation Act 1901 provides that where an Act prescribes a form, then strict compliance with the form is not required and substantial compliance is sufficient.
The tribunal considers that s.25C of the Acts Interpretation Act is directed to curing the consequences of a person failing to comply with the prescribed form in circumstances where that person substantially complies with the requirements reflected in that form. The tribunal does not accept that IELTS results are prescribed forms as envisaged in s.25. At any rate there was no “substantial compliance” because Mr Singh did not achieve the required score in each of the categories.
Mr Singh does not have competent English as defined in r.1.15C(1).
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 Duri
Member