Kaur (Migration)

[2021] AATA 5095

Kaur (Migration) [2021] AATA 5095 (11 November 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Nitamjit Kaur
Mr Satnam Singh

CASE NUMBER:  2100113

HOME AFFAIRS REFERENCE(S):          BCC2018/4799046

MEMBER:Tim Connellan

DATE AND TIME OF

ORAL DECISION AND REASONS:         11 November 2021 at 2:00 pm (VIC time)

DATE OF WRITTEN RECORD:                4 January 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decisions under review.

Statement made on 04 January 2022 at 3:06pm

CATCHWORDS

MIGRATION – Skilled Regional Sponsored (Provisional) (Class GK) visa – Subclass 489 Skilled - Regional (Provisional) – English language requirements – test results withdrawn from one test centre – decision under review affirmed

LEGISLATION

Migration Act 1958, s 65
Migration Regulations 1994, Schedule 2, cl 489.223; r 1.15

APPLICATION FOR REVIEW

1. This is an application for review of decisions made by a delegate of the Minister for Home Affairs on 17 December 2020 to refuse to grant the visa applicants Skilled Regional Sponsored (Provisional) Subclass 489 visas under the Migration Act 1958 (Cth) (the Act).

2. At the hearing on 11 November 2021 the Tribunal made an oral decision and gave an oral statement of decision and reasons. The following is the written record of those reasons.

   STATEMENT OF DECISION AND REASONS

3. Ms Nitamjit Kaur, you applied for a 489 Skilled Regional Sponsored visa on 31 October 2018.  Your application was refused on 17 December 2020 because the delegate was not satisfied you met the requirements for the grant of a 489 Skilled Regional Sponsored visa.  You appealed that decision to be reviewed by this Tribunal, and with your application for review you included a copy of the primary decision.  We discussed that decision today and I read from it and it appears that you do understand the reasons the decision was made.

4. As we went through and discussed it, there are two major issues that need consideration by the Tribunal and that were reasons that your application was refused.  The first reason is that a question of the results that you achieved in the test - there was a Cambridge English Advanced CAE test undertaken on 4 August 2018 in the United Arab Emirates, and that test was result number 188JO3O15048 - 5048 being your candidate number.  Now, while you were initially provided with the results of that test, there are two problems.  The first one is the identity of the person who sat the test - and I will come back to that.  The second problem is that while you sat the test - or someone sat the test - on 4 August 2018, and a result was issued, documents that have subsequently been provided state that:

   Following the investigation of possible malpractice, the results for all candidates at this centre were withdrawn.

5. The investigation found irregularities in the timing of the administration of the computer-based test.  In addition, the computer-recorded time stamps for answers showed irregularities.  The test centre did not upload a photograph of the candidate to be used for verification, although the candidate reported in their statement that a picture had been taken.  This is the summary report of the stage 1 appeal that you lodged with Cambridge about what had happened.  It states that:

   Analysis of the performance of all candidates for the centre was carried out in November 2018 for the multiple choice and productive sections of both the reading, use of English, and listening test.  An exceptionally high number of correct answers were given.  The overall result for this centre showed an extremely high proportion of candidates had been awarded high grades for this test.  Following identification of the erratic timing of the administration of this test and the highly unusual results, the malpractice committee met on 27 November 2018 to review results and evidence.

   The malpractice procedure states:  'If we have reasonable grounds to suspect that a result is not a reliable indicator of a candidate's ability, then we believe it is in the interests of all candidates that we withhold it.'  The malpractice committee concluded that the reliability of results was unsafe, and recommended withdrawing results for all candidates.  The centre was informed of this outcome by email and letter on 28 November 2018 and was asked to contact all candidates to inform them of this outcome.  It would appear from communication with candidate 5048 -

   which, as I said, is you -

   the centre did not contact candidates.  The candidate discovered that the English result had been withdrawn in September 2020 and contacted Cambridge English.  On 2 October 2020, the candidate was informed that as the centre had closed down. An appeal could be submitted direct to Cambridge and was provided with the information to inform the appeal.  Candidate 5048 then submitted their appeal against the withdrawal of results, and included a statement to support the appeal, which was undated. 

6. Given the evidence presented in the investigation, I believe there are reasonable grounds to suspect that this result is not a reliable indicator of this candidate's ability.  I am satisfied that in arriving at this decision Cambridge English used procedures which were consistent with the regulatory authority's code of practice, applied these procedures properly and evaluated all evidence fairly and arrived at the appropriate decision.  The document confirms that the appeal was considered by an independent authority of people who had confidence to consider the case - not employees or assessors working for Cambridge - and people with no personal interest in the decision being appealed.

7. That decision dated 22 October 2020 clearly indicated that your appeal was not upheld and therefore that means the results that were previously provided cannot be relied upon as accurate results according to that finding which indicates that your results were withdrawn. 

8. However, as I said, it also raises the question of identity, because the document that was provided - being the Cambridge test result - showed no photograph.  It is a requirement for these certificates that they carry a photograph identifying the individual who actually sat the test.  Without the photograph, the identity cannot be confirmed as to the person who sat the test and without a photograph, it means it is not acceptable evidence of English for immigration purposes. 

9. When this is put to you at today's hearing you say:  'I don't know why they didn't upload my photograph.  On the original certificate there was no photograph.  I have looked at their website, and on examples of certificates there is no indication of any photographs.  There was no photo on the form that I was given.  There's no column in the certificate for a place for the photograph to be placed.'  And you say, 'If I can get more time, I can request again from Cambridge why the photo wasn't uploaded.'

10. That question has already been put to Cambridge; it has been answered, and I am not prepared to grant further time to be having questions that have previously been answered asked again.  You say that at the time of lodgement your test result was valid.  As I say, it was not valid because the certificate provided did not have a photograph.  You say you do not know why there were any reasons for the results being withheld - well, I have read to you the outcome of the report, which I believe makes it clear as to why those results were withheld.

11. However, having considered the available evidence it is the finding of the Tribunal that you have not provided evidence of English as is required by clause 489.223 which requires that at the time of application you had competent English under the Regulation 1.15(c).  Such evidence has not been provided, and therefore the Tribunal is not satisfied that you meet clause 489.223. 

12. And therefore, it is the decision of this Tribunal to affirm the decision under review.  And this decision was made at 2.00 pm on this, 11 November 2021.

    DECISION

13. The Tribunal affirms the decisions under review.

    Tim Connellan
    Member