Baatarkhuu v Minister for Immigration and Multicultural Affairs
[2025] FedCFamC2G 432
•27 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Baatarkhuu v Minister for Immigration and Multicultural Affairs [2025] FedCFamC2G 432
File number(s): SYG 1088 of 2021 Judgment of: JUDGE ZIPSER Date of judgment: 27 March 2025 Catchwords: MIGRATION – Judicial review – decision of Administrative Appeals Tribunal – whether application accompanied by evidence that applicant has undertaken language test and achieved specified score within specified period – whether applicant can rely on language test undertaken after visa application made – “accompanied by” - no jurisdictional error established – application dismissed.
PRACTICE AND PROCEDURE – Costs – whether appropriate to order scale costs.
Legislation: Migration Act 1958 (Cth) s 54, s 55
Migration Regulations 1994 (Cth) Sch 2 cl 485.212(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r 29.13(1)
Cases cited: Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130; 305 FCR 152
BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; 296 FCR 63
Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129
Division: Division 2 General Federal Law Number of paragraphs: 42 Date of hearing: 7 March 2025 Place: Parramatta Solicitor for the Applicants: Mr R. Ahmadzai of Crystal Migration Solicitor for the Respondents: Mr C. Wang of Clayton Utz ORDERS
SYG 1088 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MUNKHTUYA BAATARKHUU
First Applicant
ENKH-AMGALAN ZESENDAVAA
Second Applicant
DASHZEVEG ENKH-AMGALAN
Third Applicant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
JUDGE ZIPSER
DATE OF ORDER:
27 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent is amended to “Minister for Immigration and Multicultural Affairs”.
2.The application is dismissed.
3.The first and second applicants pay the first respondent’s costs in the sum of $8,371.30.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE ZIPSER
INTRODUCTION
On 17 June 2021, the applicants filed an application for judicial review, pursuant to s 476 of the Migration Act 1958 (Cth) (Act), of a decision of the Administrative Appeals Tribunal (Tribunal) dated 13 May 2021. The Tribunal affirmed the decision of a delegate of the first respondent refusing to grant the applicants Temporary Graduate (subclass 485) visas under s 65 of the Act.
For the reasons that follow, the application is dismissed.
LEGISLATION AND INSTRUMENT
Clause 485.212(1) of Schedule 2 to the Migration Regulations 1994 (Cth) (Schedule 2) relevantly provided as a criterion for a subclass 485 visa:
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; …
The relevant legislative instrument was IMMI 15/062 titled “English Language Tests, Scores and Passports 2015” (Instrument). The Instrument, among other matters:
(a)specified in paragraph 2 a minimum overall score for specified English language tests undertaken by applicants; and
(b)required in paragraph 4 that the “English language tests must have been undertaken within the three years before the day on which the application was made”.
FACTUAL BACKGROUND
On 30 November 2019, the applicants, citizens of Mongolia, applied for Temporary Graduate (subclass 485) visas. The first applicant (Applicant) was the primary applicant. The second applicant is the husband of the Applicant. The third applicant is the child of the Applicant and second applicant.
On 12 February 2020, a delegate of the first respondent refused to grant the visas. The delegate was not satisfied the Applicant satisfied cl 485.212 of Schedule 2.
On 28 February 2020, the applicants applied to the Tribunal for review of the delegate’s decision.
On 13 April 2021, the Tribunal invited the applicants to attend a hearing on 11 May 2021.
On 11 May 2021, the applicants attended a hearing before the Tribunal.
On 13 May 2021, the Tribunal made a decision affirming the delegate’s decision not to grant the applicants subclass 485 visas.
TRIBUNAL’S DECISION
The issue for the Tribunal was whether the Applicant satisfied cl 485.212 of Schedule 2.
The Tribunal noted that the applicants’ visa application lodged on 30 November 2019 was accompanied by evidence that the Applicant undertook an English language test on 16 November 2019 (2019 Test). But the applicant achieved less than the minimum overall score specified in the Instrument.
The Tribunal noted that the Applicant had recently provided to the Tribunal the results of an English language test undertaken by the Applicant in March 2021 (2021 Test) in which the Applicant achieved more than the minimum overall score. But the Applicant did not undertake the 2021 Test within the period specified in the Instrument.
It followed that the visa application was not “accompanied by evidence” that satisfied cl 485.212(a). The Tribunal therefore affirmed the decision not to grant the applicants subclass 485 visas.
PROCEEDINGS IN THIS COURT
Judicial review application and procedural orders
On 17 June 2021, the applicants filed an application in this Court seeking judicial review of the Tribunal’s decision. The application included two grounds as follows (reproduced as written):
1.The Tribunal erred in their decision as to the assessment of this application by failing to consider the workings of s 54 and s 55 of the Migration Act.
2.The applicant was not provided with procedural fairness upon presenting the relevant English language score at the Tribunal as per IMMI 15/062 (instrument specifying the minimum English language requirement for this visa subclass).
On 8 July 2021, a registrar made procedural orders, including that, upon the matter being listed for hearing, the applicants file and serve written submissions and any list of authorities at least 28 days before the hearing.
Following a period of inactivity, on 11 December 2024 the registry notified the parties that the matter was listed for hearing on 7 March 2025.
On 14 February 2025, the applicants filed a written submission (AS).
On 28 February 2025, the first respondent filed a written submission.
Hearing on 7 March 2025
At the hearing in this Court on 7 March 2025, Ruslan Ahmadzai, solicitor at Crystal Migration, appeared for the applicants. Chuyi Wang, solicitor at Clayton Utz, appeared for the first respondent. The lawyers made oral submissions which supplemented their written submissions.
CONSIDERATION
Ground 1
Ground 1 refers to ss 54 and 55 of the Act. The applicants’ written submission also relies on s 5(9) of the Act at the time of the Tribunal’s decision.
In May 2021, s 5(9) provided:
(9)For the purposes of this Act … an application under this Act is finally determined when:
(a)a decision that has been made in respect of the application is not, or is no longer, subject to any form of review under Part 5 or 7; or
(b)a decision that has been made in respect of the application was subject to some form of review under Part 5 or 7, but the period within which such a review could be instituted has ended without a review having been instituted as prescribed; or
(c)in relation to an application for a protection visa by an excluded fast track review applicant—a decision has been made in respect of the application.
Sections 54 and 55, which appear to have not been amended since 2021, relevantly provide:
54 Minister must have regard to all information in application
(1)The Minister must, in deciding whether to grant or refuse to grant a visa, have regard to all of the information in the application.
(2)For the purposes of subsection (1), information is in an application if the information is:
(a) set out in the application; or
(b) in a document attached to the application when it is made; or
(c) given under section 55.
…
55 Further information may be given
(1)Until the Minister has made a decision whether to grant or refuse to grant a visa, the applicant may give the Minister any additional relevant information and the Minister must have regard to that information in making the decision.
The nub of Mr Ahmadzai’s argument was that, at the time of the hearing before the Tribunal in May 2021, the applicants’ application for subclass 485 visas was not “finally determined” and so the Tribunal, in considering whether the Applicant satisfied cl 485.212, must have regard to the results of the 2021 Test in deciding whether the Applicant satisfied cl 485.212(1).
For example, it is stated at AS [11] and [12]:
The applicant does satisfy clause 485.212(a) by way of providing the relevant test score. The Court is asked to review the applicability of ss 54 and 55 of the Migration Act as additional information was provided for an application which was not yet finally determined as per [s 5(9)] of the Migration Act.
To similar effect, it is stated at AS [21]:
We draw the Court’s attention to s 54(1) given that the ART is reviewing the decision made by the Minister’s Delegate, the 2nd respondent must therefore take into consideration additional evidence provided as part of the review process.
The difficulty with Mr Ahmadzai’s argument is that it overlooks the words of cl 485.212(1) and the Instrument. Clause 485.212(1)(a)(ii) requires that the visa application “was accompanied by evidence that the applicant … has achieved, within the period specified by the Minister in the instrument, the score specified by the Minister in the instrument”. Paragraph 4 of the Instrument specifies for cl 485.212(a)(ii) that the English language test “must have been undertaken within the three years before the day on which the application was made”.
Mr Ahmadzai was unable to explain:
(a)how the 2021 Test could “have been undertaken within the three years before the day on which the application was made”; and
(b)how the visa application made in November 2019 could be “accompanied by” the 2021 Test which was provided to the Tribunal in the two months before the hearing on 11 May 2021.
In relation to the point in paragraph 28(b), cases such as BXS20 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 20; 296 FCR 63 and Boyjonauth v Minister for Immigration and Multicultural Affairs [2024] FCAFC 130; 305 FCR 152 suggest that a visa application made in November 2019 was not “accompanied by” a document provided to the Tribunal in or shortly before May 2021.
Mr Ahmadzai did not identify any case law which supports, or possibly supports, the position that any of ss 5(9), 54 or 55 of the Act override the terms of cl 485.212(1).
The Tribunal stated at [23]:
The Tribunal accepts that the first applicant has now undertaken a specified English language test – a PTE Academic Test – and achieved the specified score. However, it notes the test was undertaken after the visa application was lodged. Accordingly, it was not undertaken in the period specified in the instrument, within the 3 years before the day on which the application was made. While the Tribunal is sympathetic to the applicant’s circumstances and understands she may have been through a difficult period, the Tribunal is not satisfied the visa application was accompanied by evidence that the first applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified.
For the above reasons, I consider there was no error in the Tribunal’s finding that the 2021 Test “was not undertaken in the period specified in the instrument, within the 3 years before the day on which the application was made”.
For the above reasons, I also consider there was no error in the Tribunal’s conclusion that it was “not satisfied the visa application was accompanied by evidence that the first applicant has undertaken a language test specified in an instrument; and has achieved, within the period specified in the instrument, the score specified”.
Ground 1 does not identify a jurisdictional error in the Tribunal’s decision.
Ground 2
Mr Ahmadzai did not develop ground 2 in written or oral submissions.
The meaning of ground 2 is not clear. It appears from ground 2 that the applicants provided a copy of the 2021 Test to the Tribunal at the hearing on 11 May 2021. It appears from the Tribunal’s decision at [18]-[22] that the Tribunal discussed the 2021 Test with the Applicant and explained to the Applicant its difficulty concerning the 2021 Test. The manner in which the Applicant might not have been “provided with procedural fairness” is not clear.
Ground 2 does not identify a jurisdictional error in the Tribunal’s decision.
COSTS
At the conclusion of the hearing, I invited submissions from the parties on costs. Mr Wang sought an order in the scale amount of $8,371.30. Mr Wang stated that the first respondent’s solicitor/client costs up to the evening of 6 March 2025 were about $8,000. He estimated solicitor/client costs to the conclusion of the hearing at about $9,000. Mr Ahmadzai stated that the first respondent’s claim for costs was excessive, and the order should be for half the scale amount.
Rule 29.13(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Rules) provides:
The Court may, in relation to a proceeding that is concluded, order an unsuccessful party to the proceeding to pay the costs of a successful party in accordance with Division 1 of Part 2 of Schedule 2.
Division 1 of Part 2 of Schedule 2 is titled “Migration proceedings that have concluded”. Division 1 contains three items which differ according to the point in time the migration proceeding concluded. Item 3, concerning “A proceeding concluded at a final hearing”, specifies an amount (commonly referred to as a “scale amount”) of $8,371.30.
The word “may” in rule 29.13(1) confers a discretion on the Court, albeit in the context of “an intention that any application for costs be measured or assessed in a context where the Court (or Judge) is conscious that a majority of the Judges of the Court have agreed to fix a scale of costs considered to be generally applicable to migration proceedings, and considered to provide an express benchmark for what may be seen as fair and just in a given case”: Gehlert v Minister for Immigration and Multicultural Affairs [2024] FCAFC 129 at [64]-[66]. I note that an order for costs in the scale amount of $8,371.30 might be slightly greater than the first respondent’s party/party costs. However, I consider it appropriate to make an order in the scale amount. First, the Rules do not require that an order for the scale amount in favour of a party be no greater than that party’s party/party costs. Second, if the first respondent’s party/party costs are less than $8,391.30, based on information provided to me by Mr Wang, it would be only by a small amount.
The third applicant is a child. The costs order should be only against the first and second applicants.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Zipser. Associate:
Dated: 27 March 2025
0
3
3