Wang (Migration)

[2019] AATA 4163

Wang (Migration) [2019] AATA 4163 (10 September 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mr Zhuoqun Wang
Mrs Shaoni Chen

CASE NUMBER:  1829102

HOME AFFAIRS REFERENCE(S):           BCC2016/2581043

MEMBER:Peter Emmerton

DATE:10 September 2019

PLACE OF DECISION:  Adelaide

DECISION:The Tribunal remits the application for Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

·cl.187.232 of Schedule 2 to the Regulations

Statement made on 10 September 2019 at 12:56pm

CATCHWORDS
MIGRATION – Regional Employer Nomination (Permanent) (Class RN) visa – Subclass 187 (Regional Sponsored Migration Scheme) – Direct Entry stream – Accountant (General) – English language proficiency – ‘3 years immediately before the day on which the application was made’ – calculating periods of time – decision under review remitted

LEGISLATION
Acts Interpretation Act 1901 (Cth), s 36
Migration Act 1958 (Cth), s 65
Migration Regulations 1994 (Cth), r 1.15C; Schedule 2, cl 187.232

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to refuse to grant the applicants Regional Employer Nomination (Permanent) (Class RN) visas under s.65 of the Migration Act 1958 (the Act).

2. The applicants applied for the visas on 4 August 2016. At the time of application, Class RN contained one subclass: Subclass 187 (Regional Sponsored Migration Scheme).

3. The criteria for a Subclass 187 visa are set out in Part 187 of Schedule 2 to the Migration Regulations 1994 (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. Applicants seeking to satisfy the primary criteria must meet the 'Common criteria', as well as the criteria of one of two alternative visa streams: the Temporary Residence Transition stream, or the Direct Entry stream.

4. In the present case, the first named applicant (the applicant) is seeking the visa in Direct Entry stream, to work in the nominated position of Accountant (General).

5. The delegate refused to grant the visas because the applicant did not meet cl.187.232 of Schedule 2 to the Regulations because at the time of application the IELTS test used to demonstrate competent English language skills was more than 3 years old.

6. The applicants were represented in relation to the review by their registered migration agent.

7. For the following reasons, the Tribunal has concluded that the matter should be remitted for reconsideration.

   CONSIDERATION OF CLAIMS AND EVIDENCE

8. The issue in the present case is whether the required requirements of 187.232 had been met.

   Other criteria

9. Clause 187.232 requires that the applicant had competent English or was a person in a class of persons specified by the Minister in an instrument in writing for this purpose. Competent English is specified as:

   (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 person is an applicant for a visa; and

   (ba) for a person who was invited (or whose spouse or de facto partner was invited) by the
   Minister under these Regulations, in writing, to apply for the visa — the test was conducted in the 3 years immediately before the date of the invitation; and

   (bb) for a person to whom paragraph (ba) does not apply — 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. OR

   (2) A person also has competent English if the person holds a passport of a type
   specified by the Minister in an instrument in writing for this subregulation.

   In this instance, the applicant is not the holder of a passport specified in (2).

10. The applicant submitted to meet competent English by way of undertaking an English proficiency test, namely an IELTS test. However, as stated in (bb) the test needed to be undertaken in the 3 years immediately before the day on which the application was made. The delegate accepted that the applicant achieved the required score.

11. The applicant achieved the required score however the delegate determined at the time of their decision, that on the day of the visa application the test was more than 3 years old.

12. The applicant's visa application was lodged on the 4th August 2016 and the English test was conducted on 3 August 2013. In the delegate’s judgement this exceeded the maximum accepted time period by 1 day and therefore they could not deviate from the Regulations.

13. The term ‘year’ is not defined in either the Act or the Regulations, and none of the calculation of time provisions in the current s.36 of the Acts Interpretation Act provides any guidance. In the absence of any such guidance the Tribunal has applied the ordinary meaning of the term, which is normally accepted as a calendar year.

14. There is also no guidance in the Act or Regulations regarding the calculation of time. However, s.36 of the Acts Interpretation Act provides as follows:

    36 Calculating time

    (1)  A period of time referred to in an Act that is of a kind mentioned in column 1 of an item in the following table is to be calculated according to the rule mentioned in column 2 of that item:

Calculating periods of time
Item	Column 1 If the period of time:	Column 2 then the period of time:
1	is expressed to occur between 2 days	includes both days.
2	is expressed to begin at, on or with a specified day	includes that day.
3	is expressed to continue until a specified day	includes that day.
4	is expressed to end at, on or with a specified day	includes that day.
5	is expressed to begin from a specified day	does not include that day.
6	is expressed to begin after a specified day	does not include that day.
7	is expressed to end before a specified day	does not include that day.

1. Section 36 of the Acts Interpretation Act, by way of an example in relation to Item 7 of s.36(1), explains: Example 7: If a person must give a notice to another person at any time during the period of 7 days before the day a proceeding starts and the proceeding starts on 8 May, the notice may be given at any time during the 7‑day period starting on 1 May and ending on 7 May.

2. With respect to the requirement in r.1.15A(1)(bb) that ‘the test was conducted in the 3 years immediately before the day on which the application was made’, applying the formula in Item 7 of s.36(1) of the Acts Interpretation Act, the Tribunal has formed the view the calculation would not include the actual day on which the application was made. Therefore, it is the Tribunal’s opinion that if a visa application was made on 4 August 2016, the language test would need to have been conducted in the period 3 August 2013 to 3 August 2016.

3. The Tribunal again notes that all parties agree the relevant IELTS English test took place on 3 August 2013. The Tribunal has therefore determined, based on Section 36 of the Acts Interpretation Act, that the requirements of cl.187.232(a) are satisfied, as the test took place within 3 years immediately before the application was made on 4 August 2016.

4. Accordingly, cl.187.232 is met. Given these findings, the appropriate course is to remit the visa application to the Minister to consider the remaining criteria for the visa.

   DECISION

5. The Tribunal remits the applications Regional Employer Nomination (Permanent) (Class RN) visas for reconsideration, with the direction that the first named applicant meets the following criteria for a Subclass 187 (Regional Sponsored Migration Scheme) visa:

   ·cl.187.232 of Schedule 2 to the Regulations

   Peter Emmerton

   Member