Wang (Migration)

The Administrative Appeals Tribunal considered a decision concerning a Subclass 187 (Regional Sponsored Migration Scheme) visa, Direct Entry stream, for an applicant seeking to migrate as an Accountant (General). The core dispute revolved around whether the applicant met the English language proficiency requirement as stipulated by clause 187.232 of the Migration Regulations.

The Tribunal was required to determine whether the applicant's English language test, conducted on 3 August 2013, was valid for their visa application lodged on 4 August 2016, given the regulation's requirement that the test be conducted "in the 3 years immediately before the day on which the application was made." The delegate had determined that the test was one day outside this three-year period, thus failing to meet the criterion.

In its reasoning, the Tribunal noted that neither the Migration Act nor the Regulations defined the term "year" or provided specific guidance on calculating periods of time. Applying the ordinary meaning of "year" as a calendar year, and considering the principles of time calculation under section 36 of the Acts Interpretation Act, the Tribunal concluded that the period of three years immediately before 4 August 2016 would include 3 August 2013. Therefore, the English language test was conducted within the prescribed timeframe.

Consequently, the Tribunal found that the applicant met the English language proficiency criterion under clause 187.232. The matter was remitted to the Minister for reconsideration of the remaining criteria for the visa.