Abdulla v Minister for Immigration

[2014] FCCA 1846

FEDERAL CIRCUIT COURT OF AUSTRALIA

ABDULLA & ANOR v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1846

Catchwords:
MIGRATION – Skilled visa – review of Migration Review Tribunal (“Tribunal”) decision.

ADMINISTRATIVE LAW – Allegation that the Tribunal’s decision affected by jurisdictional error by reason that the Tribunal misapplied the law.

Legislation:

Migration Act 1958, s.474

Migration Regulations 1994, reg.1.15C, cl.485.215 of sch.2
Migration Amendment Regulations 2011 (No.3), cl.3
Instrument number IMMI 09/073 “English Language Tests for General Skilled Migration”, legislative instrument F2009L02575
Instrument number IMMI 12/018 “Language Tests, Scores and Passports”, legislative instrument F2012L01287

Cases Cited:
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417

First Applicant: ABU JUBAER MOHAMMED ABDULLA

Second Applicant: AFSANA BEGUM

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: SYG 1831 of 2013

Judgment of: Judge Cameron

Hearing date: 1 August 2014

Date of Last Submission: 1 August 2014

Delivered at: Sydney

Delivered on: 1 August 2014

REPRESENTATION

The Applicants appeared in person

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application be dismissed.

2. The applicants pay the first respondent’s costs fixed in the amount of $6,646.

3. The applicants have liberty to apply in relation to time to pay the costs ordered in order 2.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 1831 of 2013

ABU JUBAER MOHAMMED ABDULLA

First Applicant

AFSANA BEGUM

Second Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

Introduction

1. The first applicant, who is a citizen of Bangladesh, applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 30 June 2011. His wife, the second applicant, was included in that application. On 9 October 2012 the applicants’ application was refused by a delegate of the first respondent (“Minister”) on the basis that the first applicant did not satisfy the requirement in cl.485.215 of sch.2 to the Migration Regulations 1994 (“Regulations”). The applicants then applied to the second respondent (“Tribunal”) for a review of that departmental decision. They were unsuccessful before the Tribunal and have applied to this Court for judicial review of the Tribunal’s decision.

2. In these judicial review proceedings the Court’s task is to determine whether the Tribunal’s decision is affected by jurisdictional error as that is the only basis upon which it can be set aside: s.474 Migration Act1958 (“Act”); Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476.

3. For the reasons which follow, the application will be dismissed.

Relevant legislation

1. The criteria for the grant of a subclass 485 visa are set out in pt.485 of sch.2 to the Regulations. One of the criteria which the first applicant had to satisfy was cl.485.215 which, in the version of the clause which applied at the time he lodged his application and continued to apply to him, required that he have “competent English”.

2. “Competent English” has the meaning given to it by reg.1.15C. At the time the first applicant lodged his application reg.1.15C relevantly provided:

   1.15C    Competent English

   If a person applies for a General Skilled Migration visa, the person has competent English if the person satisfies the Minister that the person:

   (a)has achieved, in a test conducted not more than 2 years before the day on which the application was lodged:

   (i)an IELTS test score of at least 6 for each of the 4 test components of speaking, reading, writing and listening; or

   (ii)     a score:

   (A)     specified by the Minister in an instrument in writing for this sub‑subparagraph; and

   (B)     in a language test specified by the Minister in the instrument; or

   (b)holds a passport of a type specified by the Minister in an instrument in writing for this paragraph.

3. That version of reg.1.15C was amended on 1 July 2011 but it continued to apply to the first applicant’s visa application: cl.3 of the Migration Amendment Regulations 2011 (No.3).

Background facts

Primary application

1. As noted earlier, the first applicant applied for a Skilled (Provisional) (Class VC) subclass 485 visa on 30 June 2011.  In his application form he stated that he had undertaken an International English Language Testing System (“IELTS”) test on 9 January 2010 and that his English language ability was “Competent”. On 5 July 2012 the delegate wrote to the first applicant asking him to provide a competent IELTS test report.  On 2 August 2012 the applicants’ representatives provided a receipt indicating that the first applicant was scheduled to sit an IELTS test on 25 August 2012 and in their covering letter they stated that they would provide the results of the test within two weeks of them becoming available.

2. On 9 October 2012 the delegate refused to grant the applicants visas on the basis that they had not provided any evidence of the first applicant’s English proficiency as prescribed by reg.1.15C and that, as a result, he did not meet the requirement of cl.485.215 of sch.2 to the Regulations.

Review application

1. On 12 March 2013 the Tribunal wrote to the first applicant inviting him to attend a hearing on 8 April 2013.  The Tribunal noted in its hearing invitation letter that the first applicant had not presented evidence that he met the English language proficiency requirement for the grant of the visa and asked him to provide, at or before the hearing, evidence that he had competent English or that he had booked an Occupational English Test (“OET”) or an IELTS test scheduled to take place no later than 6 April 2013. 

2. On 3 April 2013 the applicants’ representatives provided to the Tribunal confirmation that the first applicant had made a booking to undertake an IELTS test on 6 April 2013.  At the Tribunal hearing the first applicant stated that he had undertaken the test on 6 April 2013 and that he had also made a booking to undertake a further test on 27 April 2013 if the results of his 6 April 2013 test were unsatisfactory.  At the first applicant’s request, the Tribunal agreed to adjourn its review until 13 May 2013 to enable him to provide the results of his IELTS test.

3. On 13 May 2013 the applicants’ representatives provided to the Tribunal the first applicant’s results for the IELTS test he had undertaken on 27 April 2013.  He scored 6.5 for listening, 6.5 for reading, 5.5 for writing and 7 for speaking.  In a covering letter the applicants’ representatives submitted that the first applicant had requested a re-mark of his test and that it would take about six weeks for the results to become available.  They submitted that until then, there was no final IELTS result for the 27 April 2013 test and asked the Tribunal to defer making its decision.  The Tribunal agreed to defer its decision until 25 June 2013 to allow time for the IELTS test re-mark.

The Tribunal’s decision and reasons

1. The Tribunal affirmed the delegate’s decision to refuse the applicants visas.  In reaching its decision:

   a)it noted that although the instrument for reg.1.15C which was current at the time it made its decision (IMMI 12/018, legislative instrument F2012L01287) was expressed to apply to applications lodged before 1 July 2012, it did not reflect the structure of reg.1.15C which was in force before 1 July 2011. It further noted that there were no specifications for reg.1.15C(a)(ii) but there were specified tests and scores for the equivalent provision as substituted on 1 July 2011. The Tribunal formed the view that legislative instrument IMMI 12/018 was to be construed as specifying scores, tests and passports for reg.1.15C as in force on or after 1 July 2011 and that the applicable instrument in the first applicant’s case was IMMI 09/073 (legislative instrument F2009L02575), which was in force when the visa application was lodged. That instrument specified for reg.1.15C(a)(ii)(A) and (B) a test score of at least B in each of the four components of the OET. The Tribunal went on to note that the scores, tests and passports specified in IMMI 09/073 and IMMI 12/018 were substantially the same; and

   b)the Tribunal noted that although it had granted the first applicant the extensions of time he had sought in order to submit his IELTS test results, at the time it made its decision (on 9 July 2013) it had not received any evidence from him showing that he had competent English, including a satisfactory IELTS test result. For that reason, the Tribunal was not satisfied that the first applicant had competent English as defined by reg.1.15C and it therefore found that he did not meet the requirement of cl.485.215 of sch.2 to the Regulations.

Proceedings in this Court

1. In the application commencing these proceedings the applicants alleged:

   1.The member applied the law incorrectly.

2. At the hearing of this application, the applicants relied on one of the first applicant’s affidavits affirmed and filed on 8 October 2013, which was read subject to a reservation as to its relevance.  I have concluded that the affidavit is relevant and must be taken into account in order to properly understand the applicants’ submissions to the Court. 

3. The meanings of the versions of cl.485.215 and reg.1.15C which applied to the applicants were explained by the High Court in Berenguel v Minister for Immigration & Citizenship (2010) 264 ALR 417. Relevantly, the High Court said that a provision such as cl.485.215 does not speak exclusively to satisfaction at the time of the application and that the requirement that the test be conducted “not more than 2 years before the day on which the application was lodged” was susceptible of the construction that the test be conducted not earlier than two years before the application was lodged. The High Court held that there was nothing to prevent relevant information being provided after lodgment of the application.

4. In this case, the only tests the applicants referred to or potentially relied on were IELTS tests. Consequently, although I am not confident that the Tribunal did not err in its application of IMMI 09/073, that is of no significance because, implicitly, the only part of reg.1.15C which the applicants’ application engaged was reg.1.15C(a)(i), which did not depend on the Minister specifying a score in an immigration instrument. The applicants did not submit to the Tribunal IELTS test results which met reg.1.15C(a)(i).

5. The applicants referred to the fact that the first applicant had, three days before the Tribunal made its decision, sat the IELTS test referred to in his affidavit of 8 October 2013 and in which he had a achieved a score which would have satisfied reg.1.15C(a)(i). However, the Tribunal was unaware of this and so could not take it into account. Although the applicants had previously sought adjournments of the Tribunal decision so that the first applicant could sit IELTS tests and receive results, they conceded at the hearing of this application that they had not told the Tribunal that the first applicant was to sit that further test. In such circumstances, there can be no question of error in the Tribunal’s decision to proceed to make a decision.

6. Given that the first applicant did pass the test in the end, it is regrettable that the outcome of this proceeding will not be favourable to the applicants.  The outcome will be unfavourable to them because, although the first applicant did pass the test, the Tribunal was only going to find for the applicants if they satisfied it that the first applicant he had met the relevant criteria, but they did not do this.  Given the nature of the review, which required the Tribunal to be satisfied that the applicants satisfied the criteria for the grant of the visas they sought, it is of no relevant significance that the first applicant did pass the test before the Tribunal made its decision because the Tribunal was unaware before it made its decision either that the first applicant was sitting the test or of the result he received. 

Conclusion

1. Jurisdictional error on the part of the Tribunal has not been demonstrated. 

2. Consequently, the application will be dismissed.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of Judge Cameron

Associate: 

Date: 19 August 2014