ASHRAF v Minister for Immigration

[2014] FCCA 2758

FEDERAL CIRCUIT COURT OF AUSTRALIA

ASHRAF v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 2758

Catchwords:
MIGRATION – Review of Migration Review Tribunal decision – Skilled (Residence) (Class VB) Visa – application dismissed.

Legislation:  
Migration Regulations 1994

Applicant: HAROON ASHRAF

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: MLG 370 of 2014

Judgment of: Judge Riethmuller

Hearing date: 15 October 2014

Date of Last Submission: 15 October 2014

Delivered at: Melbourne

Delivered on: 15 October 2014

REPRESENTATION

Counsel for the Applicant: The Applicant appearing in person

Counsel for the Respondents: Mr Hibbard of Counsel.

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The Application filed on 3 March 2014 be dismissed.

2. The Applicant pay the First Respondent’s costs fixed in the sum of $3,326.00.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT MELBOURNE

MLG 370 of 2014

HAROON ASHRAF

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

(As revised from Transcript)

1. This is an application for judicial review of a decision of the Migration Review Tribunal.  On 26 April 2012 the applicant applied for a Skilled (Residence) (Class VB) visa (of which there are three subclasses - Independent, or Skilled Sponsored, or Skilled Regional).  The relevant subclass is subclass 85, the criteria for which are set out in the schedule to the Migration Regulations.  The delegate refused to grant the applicant a visa because he did not have the required English language proficiency. 

2. The applicant then brought an application to review the decision of the delegate.  The delegate’s decision in November 2013 made clear that the relevant regulation, reg.1.15C, requires an applicant to have had a score of at least 6 in each of the four language test components prior to the application for visa. 

3. The applicant has various English language test results, 13 in total, in the court book that he produced, all undertaken at different times from April 2006 onwards.  The difficulty that confronts him is that, whilst his overall band score was 6 or higher, there was in each of the test results a score for one of the categories, usually reading, which did not reach the level of 6, and therefore the scores were not sufficient to satisfy the requirements of the regulation.

4. Ultimately, the applicant did obtain a test result showing at least 6 in every category on 19 July 2014.  However, the test result score that satisfies reg.1.15C was not obtained within the two years prior to the date of the application for the visa.  In these circumstances, the applicant is unable to satisfy the relevant visa conditions as required by the legislation.

5. The applicant argues that he should be allowed to utilise a test result outside the terms of the legislation, on the basis that previously the test result score required was 5.5 and not 6, and that he would have been able to satisfy that and, alternatively, that he was not aware that he needed the scores prior to making application for the visa.

6. The information in the visa application form is far from clear, and certainly does not make it apparent to an applicant that they must have the test score results prior to making the application.  The relevant section of the form is as follows:

   Applicant language ability

   IMPORTANT NOTE:

   You have up until the time of the decision to provide evidence that you have competent English.  However, applicants should not delay in providing their evidence of English language ability.  The department will not delay finalising applications where English language test results have not been provided at the time of the application.  Applicants will have 28 days from the date of application to provide their English language results if they did not provide them at time of application.  At this point in time, if evidence has not been provided the application may be refused.

   If you are a holder of an eligible passport from either the:

   • United Kingdom (UK);

   • Canada;

   • New Zealand;

   • United States of America (USA); or

   • Republic of Ireland

   you are considered to have met the threshold English language requirement (competent English) and are not required to sit an IELTS test or OET test.

   The recorded language ability will also be used to determine liability for the second instalment charge for each person aged 18 years of over included in this application.

   Please provide details of the English language ability of ALL persons aged 18 years or over included in this application.

   --------------------------------------------------------------------------

   Have you undertaken an English test within the last 24 months?

   YES

   If yes, provide details of the most recent English tests

   Name of test  IELTS

   Date of test   14 APR 2012

   Test reference number                  TO BE ADVISED

   What is your language ability        COMPETENT

   -------------------------------------------------------------------

   Designated language points

   Do you wish to apply for designated language points?

   NO

7. A careful review of these provisions indicates that they do not make a representation that a test score obtained after the date of the visa application would be sufficient. 

8. As a matter of law, it does not appear to me that these matters are sufficient to enable the applicant to succeed in judicial review, or ultimately succeed in obtaining a visa, and it seems to me that the applicant’s case is not arguable, and is in fact doomed to fail.

9. In these circumstances, I must therefore dismiss his application before the Court. 

[Further argument ensued]

Costs

1. In this case, the applicant has been entirely unsuccessful.  The costs sought are according to the scale, and I find that the applicant should pay the Minister’s costs in the sum of $3326, and so order. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Riethmuller

Associate: 

Date:  24 November 2014