Abbas (Migration) - [2025] ARTA 421

Abbas (Migration) [2025] ARTA 421 (10 February 2025)
DECISION AND
REASONS FOR DECISION
Applicant:Mr Ali Abbas
Respondent:   Minister for Immigration and Multicultural Affairs
Tribunal Number:   2449436

Tribunal:General Member A McMurran
Place:Sydney
Date: 10 February 2025
Decision:
Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
· cl 485.212 of Schedule 2 to the Regulations.

Statement made on 10 February 2025 at 5:49pm

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate)) visa – Temporary Graduate (Post-Study Work) Stream – taking the English test successfully and then lodging the application immediately afterwards, on the same day, was within the 1 year period as specified – decision under review remitted
LEGISLATION
Administrative Review Tribunal Act 2024 (the ART Act), s 106
Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 485.212
STATEMENT OF REASONS
APPLICATION FOR REVIEW

This is an application lodged with the Tribunal on 17 December 2024 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). The applicant applied for the visa in the Temporary Graduate (Post-Study Work) Stream.
The applicant, Mr Ali Abbas, a 26-year-old citizen of the Islamic Republic of Pakistan, applied for the visa on 26 June 2024. 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.
The delegate refused the visa on 21 November 2024 because the applicant did not have the required English language proficiency. This was because the applicant took their test on the same day on which the application was lodged, not before that day, and which was therefore not within the required timeframe set out in the legislative instrument.
Tribunal process
The Tribunal has considered the information before it and determined this is a case which can be resolved in accordance with section 106(1) of the Administrative Review Tribunal Act 2024 (the ART Act) and without conducting a hearing.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl 485.212 and meets the English language requirement.
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[1] in an instrument (cl 485.212(1)(b)).
[1] From Canada, New Zealand, Republic of Ireland, United Kingdom and USA.
Clause 485.212(1) does not apply to an applicant who meets the requirements of cl 485.232 or 485.233, being an applicant for a second visa: cl 485.212(2).
As the applicant does not satisfy cl 485.232 or cl 485.233, cl 485.212(1) does apply.
The relevant instrument for the section which specifies language tests, scores, relevant periods and passports in this case is LIN 24/021. In the present case, there is no evidence that the applicant is exempt from the language test requirement because he has held a passport of a type specified, and as such cl 485.212(1)(b) is not met.
As such the applicant must meet cl 485.212(1)(a).
The instrument relevantly provides that :
Specified period and requirements
For subparagraph 485.212(1)(a)(ii) of Schedule 2 to the Migration Regulations, the following period and requirements are specified:
(a) the applicant achieved the specified test scores within 1 year before the day on which the visa application was made; and
(b) unless the test was an OET, the test scores were achieved in a single sitting.
Consideration
The applicant has submitted evidence that he completed a PTE Academic Test on 26 June 2024, and obtained in a single sitting a score of 61 for listening, 52 for reading, 61 for writing, and 69 for speaking. He obtained an overall score of 59 and was assessed as ‘proficient’.
The instrument specifies that the required test score for the PTE test is an overall band score of at least 57, with scores of at least 43 for listening,48 for reading, 42 for speaking and 51 for writing.
On that basis, the applicant achieved the necessary English language test scores for the respective components in a single sitting. The issue however, was the timing for completion of the test, which was done the same day as he lodged the application.
The evidence is that he arranged to sit for the test in the morning and then lodged his application the same day, in the afternoon. The application form asks the question: “Has the applicant undertaken an English test in the last 12 months?” The applicant answered “Yes”, the 12 month period expiring on 26 June 2024, being the date of the test. The applicant’s answer was literally correct.
The applicant sat for the test in Sydney which was pre-arranged and paid for before he could sit the test, that is, it was booked within 1 year before the day on which the visa application was made.
Judicial analysis of the proper construction of cl 485.212 is set out in some detail, together with an analysis of relevant case law on the subject in Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132 (“Shine”).
In that decision, the judgement notes that the relevant instrument should not be construed “so as to permit (contrary to the legislative amendments considered above), that evidence may be adduced of a test undertaken or score achieved after the date of lodgement of the visa application. The reasons given in this proceeding do not trench in any way upon that settled principle.” [emphasis added]
The court added that the proper construction of the relevant instrument[2] “is not achieved by an adoption of the literal meaning of the words it employs; the search is for the underlying principle upon which the legislative instrument was drafted. ‘Meaning is to be ascribed to the text of a statute, read in its context’, having regard to the general purpose and policy of the provision, as derived from its context, including extrinsic materials, and treating consistency and fairness as a surer guide than any literal understanding of the words: CFMMEU v ABCC (2020) 384 FCR 668, [4].” [emphasis added]
[2] IMMI 15/062 being considered in that case
The Court went on to conclude that the unfairness which might follow because of a test undertaken before lodgement but where the test result followed after lodgement, as had happened in Shine, was “distinct from complaints of unfairness in relation to attempts to submit a successful test results obtained after a visa application has been lodged” [sic].[3]
[3] See also AAT case 2213105
The Tribunal finds in the present case that the applicant has not sought to rely upon a successful test result after lodgement. His result was obtained the same day, but not before the day of lodgment being the language used in the instrument.
On 14 December 2024, the applicant’s representative made a submission arguing that the applicant has “fulfilled the very purpose behind the legislation and the Instrument, which is to show evidence of up-to-date English language proficiency at the time of application.” The submission argues that the completion of the test on the day of lodgment and with a successful outcome before the application was actually submitted is not contrary to the specific language and intent used in the instrument, and that the phrase “before the day” should be read so as not to defeat “the very purpose behind the instrument that the applicant has achieved required English language test scores for the grant of sc485 visa at the time of lodgement of sc485 visa from a test taken within 1 year.”
The submission is compelling and aligns with the sentiment expressed in Shine as to how best to approach meaning from the text of a statute, “read in context”. The Tribunal takes the view that the objective of the requirement in the relevant instrument is met in this case and that it would be unfair and impermissible to deny that was the case because of a literal interpretation of the words in the instrument.
The Tribunal finds in this case that taking the English test successfully and then lodging the application immediately afterwards, on the same day, was within the 1 year period as specified, and that the words ‘before the day’ should not be read so as to limit the applicability of the test and the outcome. The Tribunal is of the view that the preferable decision is that the specified obligation has been met.
The Tribunal finds therefore that it is satisfied that the application was accompanied by evidence that meets cl 485.212(1)(a).
On the basis of the above, the applicant meets the requirements of cl 485.212 of Schedule 2 to the Regulations. The matter will be remitted to the Minister accordingly for consideration of the remaining criteria for the visa.
DECISION
The Tribunal remits the application for a Skilled (Provisional) (Class VC) visa for reconsideration, with the direction that the applicant meets the following criteria for a Subclass 485 visa:
· cl 485.212 of Schedule 2 to the Regulations.
Representative for the Applicant: Mrs Nazia Sabiq (MARN: 1571391)