Puthenpurackal Antony (Migration) - [2022] AATA 3483

Puthenpurackal Antony (Migration) [2022] AATA 3483 (6 September 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Seeliya Puthenpurackal Antony
Mr Shine John
CASE NUMBER:  2204944
HOME AFFAIRS REFERENCE(S):          BCC2017/3074455
MEMBER:Alison Mercer
DATE:6 September 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 485 visa:
·cl 485.212 of Schedule 2 to the Regulations.

Statement made on 6 September 2022 at 11:29am

CATCHWORDS
MIGRATION – Skilled (Provisional) (Class VC) visa – Subclass 485 (Temporary Graduate) - Federal Circuit and Family Court remittal – English language requirement – IELTS Test – three-year period – having undertaken a test – having achieved a score – evidence of test score when determined – decision under review remitted
LEGISLATION
Migration Act 1958, ss 65, 360
Migration Regulations 1994, Schedule 2, cl 485.212
CASES
Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Immigration and Border Protection to refuse to grant the applicants Skilled (Provisional) (Class VC) visas under s 65 of the Migration Act 1958 (Cth) (the Act).
The applicants applied for the visas on 25 August 2017. 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 visas on 10 October 2017 because the first named applicant (the applicant) did not have the required English language proficiency. The delegate found that she did not meet cl.485.212, which required that, at the time that the visa application was made, it was accompanied by evidence that the applicant had undertaken a specified English test, within a specified period, in which she had obtained the required scores, or that she held a specified passport. The delegate found that the applicant did not hold a specified passport, and that the International English Language Testing System (IELTS) test results form she provided was undertaken more than 3 years immediately before the visa application was made (as the applicant sat the test on 16 August 2014) and therefore could not be counted as a 3 year period immediately before the date of the visa application was specified in the applicable written instrument made for these purposes.
The delegate therefore refused to grant her a subclass 485 visa, and also refused a visa to the second named applicant, her husband, on the basis that he did not meet the secondary criteria to be a member of the family unit of a person who held a subclass 485 visa, and there was no evidence that he met the primary criteria in his own right.
The Tribunal received a review application from the applicants on 29 October 2017, which was accompanied by a copy of the delegate’s decision.
A hearing was held on 15 June 2018, and on 21 June 2018, the Tribunal (differently constituted) made a decision to affirm the Department’s decision to refuse to grant the applicants subclass 485 visas. Having found that the applicant did not hold a passport specified for the purposes of cl.485.212(b), the Tribunal found that:
…
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl.485.212 (b) is not met. As such the applicant must meet cl.485.212 (a).
8. The Tribunal finds that the specification in the instrument created a three year period in which any specified English language test could be undertaken the results of which could be used to satisfy cl.485.212, and that period ended with the arrival of the day on which the visa application was made: 25 August 2017.
9. On her visa application form the applicant answered ‘yes’ to the question ’Have you undertaken an English test within the last 36 months?’ She also provided the Department with evidence that she had undertaken an International English Language Test System (IELTS) test on 16 August 2014 with a test reference number 14IN025748PUTS001A.
In her oral evidence the applicant conceded that she had not undertaken a specified English language test in the 36 months before the date on which her visa application was lodged.
Accordingly the Tribunal is not satisfied that the application was accompanied by evidence that meets cl.485.212 (a).
…
The Tribunal therefore affirmed the Department’s decision not to grant the applicant a visa, and also not to grant her husband a visa, as he did not meet the secondary or primary visa criteria.
The applicants sought judicial review of this decision from the Federal Circuit Court of Australia (as it then was). On 2 March 2022, the Federal Circuit and Family Court of Australia quashed the Tribunal’s decision due to an error of law and remitted the matter back to the Tribunal for reconsideration according to law: Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132. In doing so, Kelly J found that:
…
3         The determination of this application turns on the proper construction of cl 485.212 and whether the three year limitation period created by IMMI 15/062 applies as a criterion to the applicant having undertaken a ‘test’ as required by par 485.212(a)(i), and/or having achieved a ‘score’ as required by par 485.212(a)(ii) of the regulations. A constructional choice is presented by the issue including whether IMMI 15/062 is framed in terms which are in excess of the power conferred by cl 485.212. In summary, I consider it is erroneous to apply the three year limitation period so prescribed to the requirement in par 485.212(a)(i) to having undertaken a test. Paragraph 4 of IMMI 15/062 states that the “English language test must have been undertaken within three years before the day on which the application was made.” The drafting of par 4 erroneously addresses the requirements of par 485.212(a)(i) (i.e., having undertaken a test), instead of those provided by par 485.212(a)(ii) (i.e., having achieved a score). Properly construed par 4 of IMMI 15/062 says nothing, relevantly, to par 485.212(a)(i). Insofar as it is material, par 4 of IMMI 15/062 speaks only to par 485.212(a)(ii). The clear drafting error presents a constructional choice in which the literal, unambiguous, text of par 4 in IMMI 15/062 must yield to the evident purpose of the overall statutory scheme having regard to the objects of the Act, regulations and legislative instrument. To the extent par 4 of IMMI 15/062 purportedly fixes a three year time limit as the period within which a visa applicant must have undertaken a language test, it exceeds the limits of the power conferred by cl 485.212(a) and must be read down and construed as referring to the period within which an applicant must have achieved a score upon undertaking a prescribed test. The time limit as prescribed by IMMI 15/062 applies to the achievement of a score, not the undertaking of a test. Otherwise, the validity of IMMI 15/062 is preserved and operates according to its terms.
4         Here, the distinction between the requirement to undertake a ‘test’ and to achieve a ‘score’ is of no little significance. As is common ground, the applicant undertook her test more than 36 months before the date of her visa application, but she achieved a satisfactory score within that 36 month period. Evidence of that score and test were supplied with her visa application.
5         The applicant could not have achieved, within the period specified by IMMI 15/062, the score specified by the Minister, unless and until that score had been determined by the body which conducted the language test. So too, the applicant could not have supplied evidence of her test score until it had been so determined. The score as determined upon the applicant having successfully undertaken her English test was so determined, and issued, by the IELTS administrator on 27 August 2014. This score was achieved within the three year limitation period as fixed by IMMI 15/062, properly construed. The conclusions to the contrary, as reached (or as assumed) by the delegate and the Tribunal, misconstrued par 485.212(a) and IMMI 15/062 in a material way. The application should be remitted for reconsideration.
…
The matter was remitted to the Tribunal and constituted to a new Tribunal Member (the Tribunal as presently constituted) on 25 August 2022.
In reaching a decision, the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the applicants on the basis of the material before it, pursuant to s.360(2)(a) of the Act.
For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.
CONSIDERATION OF LAW, CLAIMS AND EVIDENCE
The issue in the present case is whether the applicant satisfies cl 485.212 which 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 (a)); or
·the applicant holds a passport of a type specified by the Minister in an instrument (cl 485.212 (b)).
The relevant instrument specifying language tests, scores, relevant periods and passports is IMMI 15/062 in this case. In the present case, there is no evidence that the applicant has held a passport of a type specified, and as such cl 485.212 (b) is not met. As such the applicant must meet cl 485.212 (a).
The Tribunal is satisfied from the material before it that:
·the visa application was made on 25 August 2017;
·it was accompanied by, amongst other things, an IELTS test result form issued to the applicant on 27 August 2014 indicating that she obtained scores of 7.5 for listening, 8.5 for reading, 6.5 for writing and 6.0 for speaking, with an overall band score of 7.0, in a test that she undertook on 16 Aug 2014.
The relevant parts of IMMI 15/062 provide that an IELTS test is specified for the purposes of cl.485.212(a) and that the required scores (which must be obtained in a single sitting) are a score of at least 5 in each test component, with an overall score of at least 6 (items 1-3 of IMMI 15/062). The Tribunal is satisfied the applicant’s IELTS test meets these requirements.
Item 4 of IMMI 15/062 provides that a specified English test, including an IELTS English language test, must have been undertaken within the 3 years before the day on which the application was made.
As noted above, the delegate and the Tribunal (as previously constituted) found that this requirement was not met, as the applicant undertook her IELTS test on 16 August 2014, more than 3 years immediately prior to 25 August 2014.
However, following the reasoning of Kelly J in Shine v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (No 3) [2022] FedCFamC2G 132, which is binding on the Tribunal, the Tribunal accepts that item 4 of IMMI 15/062 is beyond power, and that cl.482.212(a) is to be read as requiring that the applicant achieved the required IELTS scores in the 3 year period immediately before she made her visa application. As she received her IELTS scores on 27 August 2014, and made her visa application on 25 August 2017, the Tribunal finds that she meets this requirement.
Accordingly, the Tribunal is satisfied that the application was accompanied by evidence that meets cl 485.212 (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. As the second named applicant applied on the basis that he was a member of the family unit of the first named applicant, his application will be determined by reference to the outcome of the first named applicant's application on remittal to the Department for reconsideration.
decision
The Tribunal remits the applications for Skilled (Provisional) (Class VC) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a subclass 485 visa:
· cl 485.212 of Schedule 2 to the Regulations.
Alison Mercer
Member