Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2021] FCCA 1361
•18 June 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
Ahmed v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 1361
File number(s): SYG 3167 of 2016 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 18 June 2021 Catchwords: MIGRATION – application for leave to rely on new ground that in affirming a decision not to grant the applicant a 485 visa the Administrative Appeals Tribunal (Tribunal) made a jurisdictional error by construing “day on which the application was made” as those words appear in an instrument made for the purposes of cl 485.212(a) of Schedule 2 to the Migration Regulations 1994 (Cth) to be the day on which the applicant lodged his application for a 485 visa rather than construing the “day on which the application was made” to equate to the day on which “the application was accompanied by evidence” as provided for in cl 485.212(a) of Schedule 2, being a day before or shortly after or around the time the applicant lodged his application for a 485 visa – whether proposed ground reasonably arguable – application for leave to rely on new ground refused – application dismissed Legislation: Federal Circuit Court Rules 2001 (Cth) Sch 1, Pt 3
Migration Act 1958 (Cth) s 476
Migration Regulations 1994 (Cth) Sch 2, cl 485.212
Cases cited: Kaur v Minister for Immigration and Border Protection [2018] FCA 1765 Number of paragraphs: 30 Date of hearing: 8 June 2021 Place: Sydney Counsel for the Applicant: Ms J Lucy Solicitor for the Applicant: M S Nair & Co Solicitors Counsel for the First Respondent: Mr N Swan Solicitor for the First Respondent: Australian Government Solicitor ORDERS
SYG 3167 of 2016 BETWEEN: RIDWAN AHMED
Applicant
AND: MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
18 JUNE 2021
THE COURT ORDERS THAT:
1.The application for leave to rely on ground 7 of the amended application filed on 28 April 2021 is dismissed.
2.The application is dismissed.
3.The applicant pay the first respondent’s costs set in the amount of $7,467.
REASONS FOR JUDGMENT
INTRODUCTION
The applicant, a national of Bangladesh, applies for remedies under s 476 of the Migration Act 1958 (Cth) in relation to a decision made by the second respondent (Tribunal) affirming a decision made by a delegate of the first respondent (Minister) not to grant the applicant a Temporary Graduate (class VC) Temporary Graduate (Graduate work) (subclass 485) visa (485 visa).
BACKGROUND
The applicant applied for a 485 visa on 5 September 2015. To have been entitled to the grant of such visa the applicant had to satisfy cl 485.212 of Schedule 2 to the Migration Regulations 1994 (Cth) (Regulations), which provides:[1]
[1] For ease of expression I use the present tense.
The application was accompanied by evidence that:
(a) the applicant:
(i)has undertaken a language test specified by the Minister in a legislative instrument 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.
The applicant did not hold a passport of a type specified by the Minister. The applicant, therefore, was required to satisfy cl 485.212(a) of Schedule 2.
The Minister specified the matters referred to in cl 485.212(a) in an instrument made on 16 April 2015 (Instrument).[2] Clause 1 of the Instrument specified a number of tests, one of which is the “Pearson Test of English Academic (PTE Academic)” (PTE test). Clause 3 of the Instrument specified minimum scores for the tests identified in cl 1 of the Instrument, including the PTE test. Clause 4 of the Instrument relevantly provides as follows:
SPECIFY for subparagraphs 476.213(a)(ii) and 485.212(a)(ii) of the Regulations the following English language tests must have been undertaken within the three years before the day on which the application was made:
. . . .
c. a Pearson Test of English Academic (PTE Academic) . . .
[2] Instrument IMMI 15/062
The form of application for a 485 visa the applicant lodged asked whether the applicant had “undertaken an English test within the last 36 months”. The applicant answered “No”.
On 12 September 2015, one week after the applicant lodged his application for a 485 visa, the applicant undertook a PTE test, and achieved scores that exceeded the minimum scores specified in the Instrument. The results of that test are recorded in a document dated 13 September 2015 and titled “PTE Academic Test Taker Score Report” (PTE test results). The applicant provided this document to the Department of Immigration and Border Protection (Department).[3] It is not apparent from the evidence precisely when the applicant provided the PTE test results. The applicant submits this occurred a short time after 13 September 2015 when the applicant provided a number of other documents to the Department.[4] The Minister does not dispute this submission; and I will therefore assume that the applicant provided the PTE test results to the Department shortly after 13 September 2015. The applicant also provided to the Department a document recording the results of an International English Language Testing System test the applicant had undertaken in 2010.[5]
[3] As the Department of Home Affairs was then known.
[4] Applicant’s Submissions in Reply, [15]
[5] CB49
By letter dated 23 January 2016 the Department invited the applicant to provide additional information. The letter noted “the PTE test provided was undertaken after the date you lodged your application and therefore does not meet the English language requirements”.[6]
[6] CB43
The applicant responded by email sent on 17 February 2016, in which he said:[7]
I have attached my IELTS & PTE results. PTE test was taken one week after my visa submission. I did this silly mistake due to lack of test bookings. I had to fly from Sydney to Melbourne for the earliest booking. I am continuously living in Australia for last 7* years and I have always good results in English Tests and I have full confidence to seat again If required and score the required points.
[7] CB46
On 4 May 2016 the delegate refused to grant the applicant a 485 visa because the delegate was not satisfied the applicant met cl 485.212 of Schedule 2.
TRIBUNAL’S REASONS
The Tribunal noted that although the applicant had completed an IELTS test in 2010 he did not do so “within the three years before the day on which the application is made”, and there “is no evidence that the visa application was accompanied by evidence that the applicant had undertaken a language test specified by the Minister in a legislative instrument made for paragraph 485.212(a)(i)”.[8] The Tribunal acknowledged the applicant provided the PTE test results, but the Tribunal found the applicant “did not undertake the test within the three years before the day on which the application was made”.[9]
[8] CB79, [14]
[9] CB79, [15]
COURSE OF PROCEEDING
The application as currently filed contains three grounds of application. On 16 April 2021 the applicant filed an application in a case for leave to rely on the grounds set out in an amended application he filed on 16 April 2021 (first amended application). The first amended application proposed to substitute three grounds in place of the existing grounds. The new grounds are identified as grounds 4, 5, and 6. The applicant filed written submissions on 16 April 2021 that addressed the grounds identified in the first amended application.
On 28 April 2021, however, the applicant filed a further amended application (second amended application), which removed grounds 4 and 5 of the first amended application and added a new ground that was identified as ground 7. It appears the applicant decided to file the second amended application after the Minister filed her written submissions. Before the applicant filed the second amended application, the applicant filed a document titled “Applicant’s Submissions in Reply” (Reply Submissions). Although stated to be submissions in reply, the Reply Submissions were directed to ground 7 of the second amended application. The Minister filed submissions in reply to the Reply Submissions on 1 June 2021.
At the hearing counsel for the applicant said the applicant intended to rely only on ground 7 of the second amended application. The Minister opposes the applicant being granted leave to rely on ground 7. The Minister submits the applicant has given no adequate explanation for the delay in filing an amended application. More substantially, however, the Minister submits the sole ground on which the applicant relies has insufficient merit to warrant the Court granting the applicant leave to rely on it.
I proposed to counsel that I would hear the matter on the assumption that leave had been granted to the applicant to rely on ground 7 of the second amended application; but in my reasons for judgment I would proceed on the basis that there is before me a contested application by the applicant for leave to rely on ground 7. Counsel for the parties agreed with my proposal.
I will first consider the merits of proposed ground 7 of the second amended application.
GROUND 7
Ground 7 is as follows:
The Tribunal misdirected itself as to the proper construction of cl 485.212 of Sch 2 to the Migration Regulations 1994 (Cth) and a legislative instrument made for the purposes of paragraph 485.212(a), known as IMMI 15/062.
Particulars
(a)The Tribunal erred in construing the words “the day on which the application was made” in paragraph 4 of IMMI 15/062 to mean “the day on which the application was lodged” in circumstances where:
i.The application was accompanied by evidence, provided to the delegate shortly after the application was lodged, that the applicant had undertaken a language test specified by the Minister in IMMI 15/062 and had achieved the score specified by the Minister in IMMI 15/062 in accordance with the requirements (if any) specified by the Minister in the instrument (“the Evidence”); and, or in the alternative,
ii.The applicant provided the Evidence to the delegate in response to the delegate’s request for information made under s 56 of the Migration Act 1958 (Cth).
(b)The Tribunal erred in failing to construe the words “the day on which the application was made” in paragraph 4 of IMMI 15/062 to mean:
i.the last day on which the applicant provided the Evidence which accompanied the application to the delegate; or, alternatively
ii.the day on which the applicant provided the Evidence to the delegate in response to the delegate’s requestion for information under s 56 of the Migration Act 1958 (Cth).
(c)The Tribunal erred in failing to construe the words “within the period specified by the Minister in the instrument” in cl 485.212(a)(ii) to mean the period of three years before:
i.the last day on which the applicant provided the Evidence which accompanied the application to the delegate; or, alternatively
ii.the day on which the applicant provided the Evidence to the delegate in response to the delegate’s requestion for information under s 56 of the Migration Act 1958 (Cth).
At the hearing counsel for the applicant said the applicant did not intend to rely on paragraphs (a)(ii), (b)(ii), or (c)(ii) of the particulars.
It is immediately noticeable that the construction the particulars claim the Tribunal ought to have given to the expressions “the day on which the application was made” and “within the period specified by the Minister in the instrument” (expressions in question) does not represent what is commonly understood to be the outcome of the process of construction. “Construction”, when applied to the text of a statute, denotes the “giving to the words of a statutory provision the meaning which the legislature is taken to have intended them to have”.[10] The particulars to ground 7, however, do not purport to do that; instead, they state what they claim the Tribunal ought to have concluded, namely, that the applicant satisfied cl 485.212(a) of Schedule 2, properly construed, when he provided to the delegate evidence that he had performed the PTE test. The particulars leave open for implication the construction on which this claim is based, and the process by which such construction has been arrived at.
[10] Lacey v Attorney-General (Qld) [2011] HCA 10, at [43]
Parties’ submissions
The Reply Submissions, however, do articulate the construction on which the applicant relies for claiming the Tribunal ought to have concluded that the applicant had satisfied cl 485.212(a) of Schedule 2 to the Regulations. The applicant there submits:
(a)the Tribunal erred in finding that cl 485.212 of Schedule 2 and the Instrument required it to have regard only to language test results achieved before the initial lodgement of the application;[11]
(b)the Tribunal erred in equating the time of lodgement with the time of “making” the application under the Instrument;[12]
(c)on its proper construction, the expression “the day on which the application was made” in the Instrument means the last day on which the applicant submitted to the delegate the evidence “accompanying” the application;[13] and
(d)it follows that, for the purposes of the Instrument and, consequently, cl 485.212(a) of Schedule 2, the day on which the applicant made his application was not 5 September 2015, being the day on which he lodged his application for a 485 visa, but shortly after or at least around 13 September 2015, when the applicant provided to the Department evidence he had undertaken the PTE test.
[11] Reply Submissions, [4]
[12] Reply Submissions, [5]
[13] Reply Submissions, [6]
The applicant, therefore, submits that the expression “the day on which the application was made” in the Instrument means the day on which an applicant provides evidence that he or she has undertaken the relevant language test. The applicant further submits, however, that this construction is subject to the qualification that, before the submission of evidence can be equated with the making of an application, the evidence must be submitted within a short time after the applicant lodges the form of application for a 485 visa, or “around that time”.[14] In support of that submission the applicant particularly relies on the judgment of Charlesworth J in Kaur v Minister for Immigration and Border Protection.[15]
[14] Reply Submissions, [17], [21]
[15] Kaur v Minister for Immigration and Border Protection [2018] FCA 1765
The Minister, on the other hand, submits, among other things, that the applicant’s construction conflates two separate things that cl 485.212(a) and the Instrument require. The first is that the applicant undertake a relevant language test “within the three years before the day on which the application was made”. The second is that the application for the visa be “accompanied by evidence” that the applicant “has undertaken a language test specified by the Minister in a legislative instrument for this paragraph; and that the applicant “has achieved, within the period specified by the Minister in the instrument, the score specified” in the Instrument.
Arguable construction?
I begin with the text of the expressions in question. The expression “day on which the application was made” in the Instrument identifies a day; and it identifies the day by reference to the day “on which the application was made”. The Instrument identifies a day to enable the Minister to specify that which cl 485.212(a) of Schedule 2 permits the Minister to specify, namely, the period within which an applicant must undertake the language test and achieve a minimum specified score; and the Instrument specifies the period by fixing a three year period ending before “the day on which the application was made”. The expression “the application was accompanied by evidence” in cl 485.212(a) of Schedule 2, on the other hand, specifies something different; it specifies a requirement that must be fulfilled when an application for a visa is made. That requirement is the application’s being accompanied by evidence that the applicant has undertaken the specified language test and has achieved the specified minimum score, and the applicant has done these things within the period the Minister may specify by instrument made for the purpose of cl 485.212(a) of Schedule 2.
So read, the applicant’s construction of the expressions in question is not reasonably arguable. That is, it is not reasonably arguable that the “day on which the application was made” as specified in the Instrument is to be equated with the day on which “the application was accompanied by evidence” as provided for in cl 485.212(a) of Schedule 2. To so equate the two is to render redundant the words “within the period specified by the Minister in the instrument” in cl 485.212(a)(ii), and that part of the Instrument that specifies the period by reference to the three year period before “day on which the application was made”. If the day on which “the application was made” is equated with the day on which “the application was accompanied by evidence”, there would be no need for the Minister to specify any period within which an applicant must successfully undertake a language test; and that is because cl 485.212(a) itself would specify that period, namely, the period ending on the day by which the application for the 485 visa is to be accompanied by the required evidence.
It is true that the construction for which the applicant contends is qualified by the requirement that the applicant must submit the evidence referred to in cl 485.212(a) of Schedule 2 within a short time after the applicant lodges the form of application for the 485 visa, or at least “around that time”. This, however, only serves to illustrate the difficulties with the construction for which the applicant contends; and that is because the qualification implicitly accepts that the day on which the application for the 485 visa is lodged is at the very least potentially relevant for determining whether the day on which “the application was accompanied by evidence” is the “day on which the application was made” as specified in the Instrument. On the applicant’s construction, it becomes relevant if the evidence that is required to accompany the application is not provided at around the same time as, or is not provided shortly after the day on which, the application for the 485 visa is lodged. If the evidence required by 485.212(a) is not submitted at around the time the application for the 485 visa is lodged, or if it is not submitted shortly after the application for the 485 visa is lodged, then, on the construction for which the applicant contends, the day on which the application for a 485 visa is lodged must be the “day on which the application was made” as specified in the Instrument.
This implies that the construction for which the applicant in truth contends is not that the “day on which the application was made” as specified in the Instrument is to be equated with the day on which “the application was accompanied by evidence” as provided for in cl 485.212(a) of Schedule 2. The construction for which the applicant in truth contends is that the Instrument should be read as including the words “or around or shortly after” after the words “within the three years before”. In other words, the applicant in truth contends that the Instrument should be construed to read “within the three years before [or around or shortly after] the day on which the application was made”. This, however, would be impermissible because it would involve the addition of text into the Instrument, rather than the construing of text that forms part of the Instrument. The applicant has not submitted that it is appropriate in the circumstances of this case for words to be read into the Instrument.[16]
[16] For a discussion of the circumstances in which words may be read into a statute see Taylor v The Owners - Strata Plan No 11564 [2014] HCA 9, at [38], [39]
The applicant has referred to a number of cases, including Kaur. These cases, however, do not assist the applicant. They are concerned with the proper construction of the words “is accompanied” when used in connection with evidence or information an applicant must provide when applying for a visa. No case has held, and no case can be assumed to have proceeded on the implicit assumption, that the day on which an application for a visa was made is to be equated with the day by which specified evidence or information must accompany such application.
SHOULD LEAVE TO RELY ON GROUND 7 BE GRANTED?
Given I have found that the construction for which the applicant contends is not reasonably arguable, it follows I am not satisfied that the applicant should be granted leave to rely on ground 7 of the second amended application. In those circumstances it is not necessary to consider whether the applicant has given an adequate explanation for not having raised ground 7 earlier than he did; even if I were satisfied the applicant had given an adequate explanation for his delay, I would still not have granted the applicant leave to rely on ground 7.
DISPOSITION AND COSTS
I propose to dismiss the applicant’s application for leave to rely on ground 7 of the second amened application, and to dismiss the proceeding.
As for costs, counsel for the parties agreed that costs should follow the event. Counsel for the applicant said that, if the applicant succeeds, he would seek an order that the costs be set in the amount provided for by Part 3 of Schedule 1 to the Federal Circuit Court Rules 2001 (Cth) (FCC Rules). Counsel for the Minister was not in a position to tell me the amount for which the Minister would ask that costs be fixed, and I granted the Minister leave to inform me by email to my associate of the amount for which the Minister would ask that her costs be set. By email sent to my associate’s inbox on 8 June 2021, the Minister’s lawyer said the Minister would be seeking an order that costs be set in the amount of $7,467, being the amount provided for by Part 3 of Schedule 1 to the FCC Rules.
I am satisfied that costs should follow the event, and that $7,467 represents a fair indemnity for the costs the Minister has incurred in successfully defending the proceeding. I therefore also propose to order that the applicant pay the Minister’s costs set in the amount of $7,467.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 18 June 2021
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