Singh (Migration)

This matter concerned an application by Mr Atinder Pal Singh for review of a delegate of the Minister for Immigration's decision to refuse him a skilled provisional (Class VC) visa, subclass 485. The delegate's refusal was based on the applicant's failure to provide evidence of the required English language proficiency at the time of his application on 15 March 2018.

The primary legal issue before the Tribunal was whether Mr Singh satisfied clause 485.212 of the Migration Regulations 1994. This clause requires an applicant to provide evidence of having undertaken a specified English language test within a specified period before the application date and achieved the required score, or to hold a specified passport. The relevant instrument, IMMI 15/062, stipulated that the English language test must have been conducted within the three years preceding the application.

The Tribunal found that Mr Singh did not hold a specified passport, meaning he had to satisfy the language test requirement under clause 485.212(a). He had provided an English language test dated after his application and an older test from 2011, neither of which met the regulatory requirements. Mr Singh contended that he was advised by a migration agent that completion of his nursing course in English meant he did not need a test, or that the department would allow him to undertake one. While the Tribunal acknowledged his assertion of being misled, it noted that the provided evidence did not substantiate the specific advice given. The Tribunal concluded that the legislation was clear and did not grant it discretion to waive the requirement. As Mr Singh's application was not accompanied by the requisite evidence of English language proficiency, he failed to meet clause 485.212.

Consequently, the Tribunal affirmed the delegate's decision to refuse the visa. The Tribunal also noted that while it would not refer the matter to the Minister, Mr Singh was not prevented from seeking ministerial intervention himself. Mr Singh was informed of his right to appeal the decision to the Federal Circuit Court on a question of law.