Awan v Minister for Immigration
[2020] FCCA 3134
•19 November 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| AWAN v MINISTER FOR IMMIGRATION & ANOR | [2020] FCCA 3134 |
| Catchwords: MIGRATION – Graduate visa – decision of the Administrative Appeals Tribunal – where the applicant did not sit an English Language Test prior to lodging visa application – where it is alleged that incorrect advice given to the applicant from a Departmental representative – no jurisdictional error – application dismissed. |
| Legislation: Migration Act 1958 (Cth), ss.351, 476 Migration Regulations 1994 (Cth), cl.485.212 |
| Cases cited: Bala v Minister for Immigration & Border Protection [2019] FCA 600 Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17 Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 |
| Applicant: | MUHAMMAD QASIM AWAN |
| First Respondent: | MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
| Second Respondent: | ADMINISTRATIVE APPEALS TRIBUNAL |
| File Number: | PEG 195 of 2020 |
| Judgment of: | Judge Kendall |
| Hearing date: | 17 November 2020 |
| Date of Last Submission: | 17 November 2020 |
| Delivered at: | Perth |
| Delivered on: | 19 November 2020 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the First Respondent: | Mr T Galvin |
| Second Respondent: | Submitting appearance, save as to costs |
| Solicitors for the Respondents: | Minter Ellison Lawyers |
ORDERS
The application be dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 195 of 2020
| MUHAMMAD QASIM AWAN |
Applicant
And
| MINISTER FOR IMMIGRATION, CITIZENSHIP, MIGRANT SERVICES AND MULTICULTURAL AFFAIRS |
First Respondent
| ADMINISTRATIVE APPEALS TRIBUNAL |
Second Respondent
REASONS FOR JUDGMENT
Introduction
The applicant is a citizen of Pakistan. He appears to have arrived in Australia in March 2012 on a student visa (Court Book (“CB”) 31).
On 20 August 2018, the applicant applied for a Temporary Graduate (Graduate Work) (subclass 485) visa (the “visa”) (CB 18-60). Included in the visa application was confirmation of a booking and payment for an English Language Test that the applicant was scheduled to undertake on 22 August 2018 (CB 47-49).
On 27 September 2018, a delegate of the first respondent (the “Minister”) refused to grant the applicant the visa (CB 67-74). The delegate found that the applicant did not meet cl.485.212 of the Migration Regulations 1994 (Cth) (the “Regulations”) as the applicant had not provided evidence that he had satisfied the English Language criterion in the three years prior to lodging his visa application.
On 12 October 2018, the applicant applied for review of the delegate’s decision at the Administrative Appeals Tribunal (the “Tribunal”) (CB 75-77).
The applicant attended a hearing before the Tribunal on 2 June 2020 (CB 119-121).
On 4 June 2020, the Tribunal affirmed the delegate’s decision to refuse the visa (CB 128-132).
The applicant applied to this Court on 1 July 2020 for judicial review of the Tribunal’s decision pursuant to s.476 of the Migration Act 1958 (Cth). To obtain assistance from this Court, the applicant must show that the Tribunal has fallen into jurisdictional error.
Tribunal’s Decision
The Tribunal’s decision is 5 pages long and spans 24 pages.
The Tribunal began by identifying the type of visa the applicant applied for. It then summarised the delegate’s decision and noted that the hearing proceeded via telephone. The Tribunal was satisfied that the applicant was given a fair opportunity to present evidence and arguments (at [1]-[5]).
The Tribunal stated that the issue before it was whether the applicant met cl.485.212 of the Regulations (at [7]). The Tribunal noted that there was no evidence that the applicant had held a passport of a type specified by IMMI 15/062 (at [8]). The Tribunal referred to the fact that the delegate had found that the applicant did not hold a passport of a specified type (at [10]). The applicant confirmed to the Tribunal that he did not hold such a passport (at [11]). Accordingly, the Tribunal was not satisfied that the applicant met cl.485.212(b).
The Tribunal referred to the fact that applicant answered “no” to the question in the visa application that asked whether he had completed an English Language Test in the previous 36 months (at [9]).
The Tribunal noted that the delegate had found that the applicant had not met cl.485.212(a)(ii) as the two pieces of evidence that he had provided in relation to the English Language Test were dated after the date of his visa application (at [12]).
The Tribunal detailed the evidence provided by the applicant – including a copy of his English Language Test results from 4 September 2018, his skills assessment results, certificates from his college and his Trades Recognition Australia provisional Skills Assessment Application result from the Department of Education and Training dated 6 September 2018 (at [13]).
The Tribunal continued:
14. At the hearing the applicant set out the circumstances which led to him not meeting the English language requirement. He said he called the Department on 16 August 2018 and spoke to an immigration official. He said he asked whether he could submit the application without the test results and was told that if the system was letting him fill out the application he could submit it and provide supporting documents later. He said he didn’t have advice from anyone else but thought it was best to go to the Department. He said he asked if he should submit the application or seek more time. He said he was told to submit the application. He said his visa was expiring in 5 days and he was worried.
15. He said he would have applied for a bridging visa or extension if he had known he couldn’t take the test following the application being lodged. He then said he had booked several tests and ended up with the IETLS test he submitted. The Tribunal queried whether he had taken tests prior to submitting the application and he said he had taken two but had not achieved the required results. The Tribunal confirmed that his evidence was that although he took several tests within the required period prior to the application being lodged he had not achieved the required test results in those tests. He confirmed that was the case.
The Tribunal accepted that the applicant had called the Minister’s Department. However, the Tribunal could not be certain whether the applicant had misunderstood the information the Department had provided or whether he was provided incorrect information (at [16]).
The Tribunal continued:
17. Regardless, as discussed with the applicant, it is the Tribunal’s view that information or advice provided by the Department or a third party cannot alter the requirements for the visa. The Tribunal explained to the applicant the requirements of cl.485.212. It explained that to meet the requirement the applicant had to provide evidence with the visa application that he had undertaken a language test specified in an instrument; and had achieved, within the period specified in the instrument, the score specified. It explained that the period specified is three years before the day on which the visa application was made.
18. The Tribunal explained to the applicant that the issue before it was whether he satisfies cl.485.212 which requires him to provide particular evidence as set out in the instrument. It was not open to the Tribunal to find he met the English language requirement on some other basis including on the basis of another test taken after the application was made.
19. The Tribunal explained that regardless of any ambiguity or misreading of information from the Department, the law requires the applicant to have already taken an English language test by the time he made his visa application. The Tribunal’s task is to determine whether the applicant meets the criterion.
20. The Tribunal explained to the applicant that regardless of the reasons for the applicant not meeting the criterion, they must be met. This includes the requirement the applicant has undertaken a specified English language test within the 36 months before submitting his visa application. The Tribunal explained that it does not have any discretion to waive this requirement.
21. The Tribunal accepts that the applicant has undertaken a specified English language test – an IELTS English language test – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. It therefore was not undertaken in the period specified in the instrument, within the 36 months before the day on which the application was made. The Tribunal is therefore not satisfied the visa application was accompanied by evidence that the applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
The Tribunal was not satisfied that the applicant met cl.485.212 of the Regulations (at [22]). Accordingly, the Tribunal affirmed the decision not to grant the applicant the visa (at [23]-[24]).
Proceedings in this Court
The applicant’s application for judicial review dated 1 July 2020 contains three grounds of review, as follows:
1. The applicant is a legal resident in Australia for 8 years and has completed his degree/diploma honouring his student visa.
2. The applicant has always been a law abiding, tax paying resident, compliant with all the laws of the land.
3. The applicant filed his graduate visa application according to the advice and information offered by an officer of the department of home affairs. The information provided turned out to be faulty, hence it was an honest mistake of fact and not a deliberate infringement of law by the applicant
(Without alteration)
In his affidavit dated 30 June 2020, the applicant states:
4. I applied for my graduate visa after completion of my degree within the prescribed time. I have always filled my applications and documents during my stay here in Australia after seeking proper information from the relevant bodies and departments, since; I had to be responsible with my finances, being a student and provider of a young family.
5. I didn’t have my IELTS certificate ready at the time of application of my graduate visa and called the department of home office for directions. I was told by an officer of the department over the phone that I could provide my IELTS certificate after submission of my visa application. Which I did couple of weeks after submission of my visa application.
6. As it turned out the concerned officer at the department was out of legal loop, thus providing me with faulty direction, as my visa application was refused for the precise reason of not submitting my IELTS certificate with my visa application.
7. I filed an application for review at the administrative appeals tribunal. The AAT affirmed the refusal on the presumption that I might have misunderstood the information provided by the officer.
8. I understand the laws are here to make our world better. The application of strict construction approach of law could break the positive momentum of my life, where I am a responsible resident, providing for a young family by working very hard.
9. AAT member made judicial error while making a decision of my application.
10. I understand the home office keeps recordings of every call made to its officers. My refusal was affirmed on a presumption by AAT which could easily be dealt with listening to the calls I made to department of home affairs.
11. I am attaching along my calls record with time, duration and date with this application.
12. I understand an infringement of law was committed by not attaching IELTS certificate with my graduate visa application but it was an honest mistake of fact and not a deliberate disrespect of law.
13. I request this honourable forum of federal court to review the decision of Department of Home Affairs and AAT, so I could keep living the dignified life of this proud and just land.
(Without alteration)
The applicant was given an opportunity to file an amended application, any further affidavits and an outline of submissions. No further materials were filed.
The materials before the Court thus include those referred to above, correspondence confirming service of the Court Book and the Minister’s written submissions (marked as Exhibit 1), a Court Book numbering 132 pages (marked as Exhibit 2) and an outline of written submissions filed by the Minister on 21 October 2020.
The applicant appeared before the Court without legal representation. He required a hearing loop to assist him. The Court confirmed that he could hear and could participate without difficulty. The Court queried whether the applicant had received a copy of the Court Book and the Minister’s written submissions. While the applicant did not have a copy of the submissions or the Court Book with him, Exhibit 1 confirms that the applicant was served these documents. The Court indicated to the applicant that, to the extent that reference was made to the Court Book, he would be shown the document. Further, Mr Galvin would summarise the Minister’s submissions.
Noting that the applicant was unrepresented, the Court explained that it would give him an opportunity to elaborate on, and further particularise, the grounds of review and to outline any other concerns he had with the Tribunal’s decision. This is the standard approach in this Court following the decision in Bala v Minister for Immigration & Border Protection [2019] FCA 600 at [7].
To assist the applicant, the Court explained that this Court can only turn its attention to the issue of jurisdictional error in the Tribunal’s decision. The Court explained that the possible categories of jurisdictional error are not exhaustive and sometimes overlap. For migration decisions of this sort, however, they most commonly include (but are not limited to) the following categories:
a)where the decision-maker identifies the wrong issue or asks the wrong question: Craig v State of South Australia (1995) 184 CLR 163 (“Craig”) at 198;
b)where the decision-maker ignores relevant material: Craig at 198;
c)where the decision-maker relies on irrelevant material: Craig at 198;
d)where the decision-maker fails to follow mandatory procedures: SAAP v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 294 at [207]-[208];
e)where the decision-maker shows actual or apprehended bias: SZRUI v Minister for Immigration, Multicultural Affairs & Citizenship [2013] FCAFC 80 at [2]; and
f)where the decision is illogical, irrational or unreasonable: Minister for Immigration & Citizenship v SZMDS (2010) 240 CLR 611 at [131]; Minister for Immigration & Citizenship v Li (2013) 249 CLR 332 at [26]-[28]; Minister for Immigration & Border Protection v Singh (2014) 231 FCR 437 at [44].
It was also explained that this Court cannot review the merits of the Tribunal’s decision or grant the applicant the visa he seeks. Rather, the role of the Court is restricted to determining if the Tribunal made a material error in arriving at the decision it arrived at: Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272.
Against this background, the applicant explained what occurred in relation to the advice that he had received from the Minister’s Department. He reiterated that he was never told that it was the “law” that the English Language Test had to be taken before the application was filed and that the results needed to be provided with the application. The applicant stressed that he was a law abiding citizen and had tried to do everything he could do to ensure he lodged the visa application correctly.
The Court sympathises with the applicant. He appears to have attempted to do the “right thing” and, arguably, relied on incorrect advice from the Department. Unfortunately, for the reasons explained below, there is no jurisdictional error in the Tribunal’s decision.
Consideration
Grounds 1 and 2
Grounds 1 and 2 provide:
1. The applicant is a legal resident in Australia for 8 years and has completed his degree/diploma honouring his student visa.
2. The applicant has always been a law abiding, tax paying resident, compliant with all the laws of the land.
The Court has no reason to doubt what the applicant says above. Unfortunately, the information provided is irrelevant to the issue of whether there is jurisdictional error in the Tribunal’s decision.
What appears above are statements that pertain to whether the applicant is genuine or credible. Unfortunately, they do not assist him in relation to his application for judicial review.
Grounds 1 and 2 are, accordingly, dismissed.
Ground 3 and the Applicant’s Affidavit
Ground 3 and the applicant’s affidavit all take issue with allegedly erroneous advice that he says was provided by the Minister’s Department.
The applicant says he was advised that he did not need to provide an English Language Test with his application. He says he was told that he could provide it “at a later date”.
Annexed to the applicant’s affidavit are his call records for the period 30 July 2018 to 29 August 2018. The annexure shows that two phone calls were made to the then Department of Home Affairs on 15 August 2018 and 16 August 2018 totalling 15 minutes in duration.
The applicant refers in his affidavit to the fact that there is a recording of the phone calls. The Court does not consider it necessary to obtain recordings of the phone calls referred to. Nor does the Court consider it to have been an “obvious inquiry” for the Tribunal to have obtained the phone call records.
The relevant question is whether the provision of any advice (even if incorrect) resulted in jurisdictional error on the part of the Tribunal.
This is so because, as the Tribunal correctly states, the fact that bad advice may have been provided does not change the fact that cl.485.212 has to be met.
The Tribunal refers to Kumar v Minister for Immigration & Border Protection [2014] FCA 1336 at [43] wherein Justice Beach states:
Third, even if he was misled, that does not alter the relevant criterion that had to be satisfied or the Tribunal’s task under s 65 of the Act. There was no dispute that the criterion had not been satisfied. Moreover, the form of the application could not rewrite the statutory criterion which the Tribunal was bound to consider and apply.
Just as the form of the application could not alter the statutory criterion, the advice of the Department could not alter the statutory criterion. Clause 485.212 required the applicant to have taken an English Language Test and met the required scores in the 36 months prior to lodging his visa application.
Here, the applicant sat the test and obtained the results after he lodged the visa application. In those circumstances, the Tribunal had no choice (notwithstanding any bad advice that the applicant was given) to affirm the delegate’s decision. There is no discretion or power to waive cl.485.212.
While the circumstances of this matter are indeed unfortunate, the fact that the applicant may have acted on bad advice from the Minister’s Department does not amount to jurisdictional error. Negligence or incorrect advice is not sufficient to stultify the Tribunal’s decision. Negligent advice or incorrect advice from a third party (here an officer at the Minister’s Department) does not amount to a fraud on the Tribunal: Minister for Immigration & Citizenship v SZLIX [2008] FCAFC 17.
The Court is not unsympathetic to the concerns raised by the applicant. It accepts that he made an “honest mistake of fact”. Unfortunately, the Court cannot assist him on review. The Tribunal came to the correct conclusion.
Ground 3, and the applicant’s affidavit, are dismissed.
Conclusion
The application for judicial review and the applicant’s affidavit fail to identify any jurisdictional error. The Court has otherwise been unable to identify any jurisdictional error.
The Court notes that the circumstances may warrant further consideration from the Minister insofar as the Minister has discretionary powers pursuant to s.351 of the Act.
The application is, accordingly, dismissed.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Judge Kendall
Associate:
Date: 19 November 2020
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