Ahmed v Minister for Immigration

[2017] FCCA 1013

FEDERAL CIRCUIT COURT OF AUSTRALIA

AHMED v MINISTER FOR IMMIGRATION & ANOR [2017] FCCA 1013

Catchwords:
MIGRATION – Review of administrative appeals decision – whether decision affected by jurisdictional error – jurisdictional error not established – application dismissed.

Legislation:

Migration Act 1958 (Cth): s.5
Migration Regulations 1994 (Cth): cl.485

Applicant: RAHEEL AHMED

First Respondent: MINISTER FOR IMMIGRATION AND BORDER PROTECTION

Second Respondent: ADMINISTRATIVE APPEALS TRIBUNAL

File Number: BRG 1026 of 2016

Judgment of: Judge Vasta

Hearing date: 15 May 2017

Date of Last Submission: 15 May 2017

Delivered at: Brisbane

Delivered on: 15 May 2017

REPRESENTATION

Counsel for the Applicant: Mr P.A. Travers

Solicitors for the Applicant: Chand Lawyers

Counsel for the Respondent: Mr J.D. Byrnes

Solicitors for the Respondent: Clayton Utz

ORDERS

1. That the application filed 3 November 2016 be dismissed.

2. That the Applicant pay the Respondent’s costs of and incidental to this proceeding fixed in the sum of $7,206.00 (inclusive of GST).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 1026 of 2016

RAHEEL AHMED

Applicant

And

MINISTER FOR IMMIGRATION AND BORDER PROTECTION

First Respondent

ADMINISTRATIVE APPEALS TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(Ex tempore)

1. By application filed in this court on 3 November 2016, the Applicant, Raheel Ahmed, asks this Court to review a decision of the Administrative Appeals Tribunal, which itself had affirmed an earlier decision of a delegate of the Minister of Immigration and Border Protection not to grant the Applicant a visa. 

2. In short compass, the facts are that the Applicant, who is a citizen of Pakistan, came to Australia on a student visa subclass 573 in May 2013.  The Applicant sat for an IELTS examination on 22 September 2012 and he scored quite well on that test.

3. Between July 2013 and June 2015, the Applicant completed a Graduate Diploma of Management and a Master of Business Administration program at the Central Queensland University.  He then applied for a further visa on 11 December 2015. 

4. To grant a subclass 485 visa, there are certain criteria that need to be met. Those criteria are set out in cl.485 of Schedule 2 to the Migration Regulations 1994 (Cth). The issue here is whether the Applicant satisfied cl.485.212, which requires that:

   “The application was accompanied by evidence that:

   (a) the applicant:

   (i) has undertaken a language test specified by the Minister in a legislative instrument made for this paragraph; and

   (ii) has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument in accordance with the requirements (if any) specified by the Minister in the instrument; or

   (b) the applicant holds a passport of a type specified by the Minister in a legislative instrument made for this paragraph.”

5. It is the language test in the instrument that was the focus of this application. 

6. In that “legislative instrument”, the Applicant had to provide a copy of a test that had been completed within three years of the application.  That means that the test that he provided had to have been completed later than 15 December 2012.  The test that he provided was the one I have previously spoken of; the one that was undertaken on 22 September 2012.  Therefore, he is, as it were, three months out of date.

7. The Tribunal looked at all sorts of ways as to whether it could have done anything to help the Applicant for whom there was quite a deal of sympathy, especially when one considers all of his circumstances.  Notwithstanding that, the Tribunal found at paragraph 13:

   “…However, it does not have any discretion to waive the requirement that he meets the specified English language requirements as set out in IMMI 15/062.” 

   Therefore, the Tribunal affirmed the decision.

8. Before this Court, the Applicant says that there was a jurisdictional error in that the Tribunal failed to consider a relevant consideration, that being the Applicant’s tertiary qualifications. Those qualifications would show that the Applicant had “functional English”. Those two words, “functional English” are defined by the Migration Act 1958 (Cth) (“the Act”) in s.5 of the Act, which reads this way:

   “(2) For the purposes of this Act, a person has functional English at a particular time if:

   (a) the person passes a test that:

   (i) is approved in writing by the Minister for the purposes of this subsection; and

   (ii) is conducted by a person, or organisation, approved for the purposes of this subsection by the Minister by notice in the Gazette; or

   (b) the person provides the Minister with prescribed evidence of the person’s English language proficiency.”

9. There is no contest that the evidence would point to the Applicant having “functional English”. The question is whether having “functional English” is a matter that has any relevance at all to the proper interpretation of cl.485.212.

10. I am of the view that if “functional English” were to have been a matter that the Minister should have regard to, then the clause itself would have specifically mentioned that.

11. The clause itself speaks only of the language test and the test having been done in accordance with the instrument which proscribes a test of no later than three years beforehand. 

12. Therefore, on a strict interpretation, I am of the view that whether or not the person has “functional English” is not a matter that a decision-maker can look at in determining whether the criteria in cl.485.212 have been met.

13. Therefore, I am of the view that there was no relevant consideration that the Tribunal did not consider and, therefore, there is no jurisdictional error.

14. Whilst it gives me absolutely no pleasure to do so, my task here is clear. I dismiss this application with costs in the sum of $7,206.00.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Vasta.

Date: 24 May 2017